Comprehensive Guide to Civil Practice and Alternative Dispute
School
University of Technology Sydney**We aren't endorsed by this school
Course
CIVIL PRAC 70104
Subject
Law
Date
Dec 10, 2024
Pages
80
Uploaded by BailiffFlowerPelican31
1CIVIL PRACTICE (70104) TABLE OF CONTENTS INTRODUCTION TO CIVIL PRACTICE ................................................................................................6INTRODUCTION ................................................................................................................................6PROCEDURAL AND SUBSTANIVE LAW .....................................................................................6 SOURCES OF CIVIL PROCEDURE LAW ....................................................................................6 CASE MANAGEMENT AND THE OVERRIDING PURPOSE (GUIDING PRINCIPLES) .................7GUIDING PRINCIPLES .................................................................................................................7 METHODS OF CASE MANAGEMENT .........................................................................................8 DIRECTIONS .................................................................................................................................8 ALTERNATIVE DISPUTE RESOLUTION .............................................................................................9LITIGATION TECHNOLOGY ............................................................................................................9ADR ...................................................................................................................................................9LEGISLATIVE FRAMEWORK .......................................................................................................9 NADRAC – 7 NATIONAL PRINCIPLES FOR THE RESOLUTION OF DISPUTES ......................9 ROLE OF LAWYERS IN ADR .....................................................................................................10 PURPOSES OF ADR ..................................................................................................................10 GROWTH OF ADR ......................................................................................................................10 TYPES OF ADR ..........................................................................................................................10 FACILITATIVE PROCESSES .........................................................................................................10ADVISORY PROCESSES ...............................................................................................................11DETERMINATIVE PROCESSES ....................................................................................................11ADR UNDER THE CPA ...................................................................................................................11MEDIATION UNDER THE CPA ......................................................................................................12COMMENCEMENT OF MEDIATION ..........................................................................................12 MEDIATION PROCEEDINGS .....................................................................................................12 PROCEDURE POST-MEDIATION ..............................................................................................13 ADVANTAGES ............................................................................................................................13 DISADVANTAGES ......................................................................................................................13 LAWYERS IN MEDIATION ..........................................................................................................13 ARBITRATION UNDER THE CPA ..................................................................................................14REFERRAL TO ARBITRATION ..................................................................................................14 ARBITRATION PROCESS ..........................................................................................................14 DECISION MAKING ....................................................................................................................14 ADVANTAGES ............................................................................................................................15 DISADVANTAGES ......................................................................................................................15 NEGOTIATION ................................................................................................................................15DIFFERENT APPROACHES .......................................................................................................15 BATNA .........................................................................................................................................16 PRE-LITIGATION STEPS ....................................................................................................................17ACCESS TO JUSTICE ....................................................................................................................17OPEN JUSTICE ...............................................................................................................................17CLOSED COURT PROCEEDINGS (LIMITATIONS TO OPEN JUSTICE) .................................17 NON-PUBLICATION OF PROCEEDINGS ..................................................................................17 PRE-LITIGATION STEPS AND CLIENT CARE .............................................................................18PRE-LITIGATION CHECKLIST ...................................................................................................18 PRE-LITIGATION ........................................................................................................................18 PROOF MAKING MODEL ...........................................................................................................19 CASE ANALYSIS: PARTIES AND CAUSE OF ACTION ...............................................................20
2CAUSE OF ACTION ....................................................................................................................20 STANDING AND CAPACITY .......................................................................................................21 INITIATING PROCEEDINGS ...............................................................................................................22JURISDICTION ................................................................................................................................22TWO CONFERRALS OF JURISDICTION ...................................................................................22 TRANSFERALS OF PROCEEDINGS (CROSS-VESTING SCHEME) .......................................22 HIGH COURT ..............................................................................................................................22 FEDERAL COURT ......................................................................................................................22 SUPREME COURT .....................................................................................................................22 DISTRICT COURT ......................................................................................................................22 LOCAL COURT ...........................................................................................................................22 INITIATING PROCEEDINGS: COMMENCING LITIGATION ..........................................................23KEY CONCEPTS .........................................................................................................................23 OVERVIEW/TIME PERIODS .......................................................................................................23 INITIATING PROCESS/ORIGINATING DOCUMENTS ..............................................................23 TIPS BEFORE DRAFTING DOCUMENTS .................................................................................24 SUMMONS ..................................................................................................................................24 STATEMENT OF CLAIM .............................................................................................................24 DRAFTING PLEADINGS .................................................................................................................25PLEADINGS (Pt 14 UCPR) .........................................................................................................25 PARTICULARS ............................................................................................................................26 JOINING PARTIES ......................................................................................................................27 SIGNATURES .............................................................................................................................28 SERVICE GENERALLY ..............................................................................................................28 ORDINARY SERVICE .................................................................................................................29 PERSONAL SERVICE ................................................................................................................29 SUBSTITUTED SERVICE ...........................................................................................................29 SERVICE OF JURISDICTION .....................................................................................................30 DEFENDING PLEADINGS ..........................................................................................................30 AMENDMENTS ...........................................................................................................................31 DEFECTIVE PLEADINGS ...........................................................................................................31 EVIDENCE IN PROCEEDINGS ...........................................................................................................33KEY TERMS ................................................................................................................................33 AFFIDAVITS (Pt 35) ........................................................................................................................33FORM ..........................................................................................................................................33 OATHS AND AFFIRMATIONS ....................................................................................................33 CONTENT ...................................................................................................................................34 RELEVANT UCPR PROVISIONS ...............................................................................................34 EXHIBITS .........................................................................................................................................35PRELIMINARY DISCOVERY (Pt 5 UCPR) .....................................................................................36DISCOVERY (Pt 21) ........................................................................................................................36DOCUMENTS THAT MAY BE SUBJECT TO DISCOVERY .......................................................36 DISCOVERY PROCESS .............................................................................................................36 NOTICES TO PRODUCE (Pt 21 and 34; Form 19 and 24) ...........................................................37BEFORE HEARING .....................................................................................................................37 DURING HEARING .....................................................................................................................37 FORMAL REQUIREMENTS OF NtP ...........................................................................................38 NOTICES TO ADMIT (Pt 17; Form 17) ...........................................................................................38INTERROGATORIES (Pt 22; Forms 21 and 22) ............................................................................38SUBPOENAS (Pt 33) ......................................................................................................................38REQUIREMENTS ........................................................................................................................38 DEALING WITH SUBPEONAS ON FOOT ..................................................................................38
3SETTING ASIDE SUBPOENAS (ABUSE OF PROCESS) ..........................................................39 EXPERT EVIDENCE (r 31.18) .........................................................................................................39REQUIREMENTS (s 79 EA; Dasreef v Hawchar) .......................................................................39 JOINT CONFERENCE (r 31.24; SC PN 11) ................................................................................39 EXPERT REPORTS ....................................................................................................................39 INTERLOCUTORY APPLICATIONS ...................................................................................................40KEY TERMS ................................................................................................................................40 TYPES OF INTERLOCUTORY APPLICATIONS ............................................................................40MOTIONS (Pt 18 UCPR) .................................................................................................................41FORMAL REQUIREMENTS ........................................................................................................41 INTERLOCUTORY APPLICATION PROCEDURE .........................................................................41SEEKING EXPEDITION ..................................................................................................................41INJUNCTIONS .................................................................................................................................42KEY TERMS ................................................................................................................................42 APPLICATION PROCESS ..........................................................................................................42 MAREVA/FREEZING ORDERS ......................................................................................................43ANTON PILLER/SEARCH ORDERS (Pt 25, Div 3) .......................................................................43SECURITY FOR COSTS .................................................................................................................43REPRESENTATIVE PROCEEDINGS/CLASS ACTIONS ...............................................................44APPEALING INTERLOCUTORY DECISIONS ...............................................................................44DISCHARGE AND VARIATION ......................................................................................................44DISPOSING WITH PROCEEDINGS ....................................................................................................45KEY TERMS ................................................................................................................................45 STRIKE OUT ...................................................................................................................................45GROUNDS FOR STRIKE OUT ...................................................................................................45 DIFFICULTY OF OBTAINING A STRIKE OUT ORDER .............................................................46 SUMMARY DISPOSAL (Pt 13) .......................................................................................................46GROUNDS FOR SUMMARY JUDGMENT .................................................................................46 PROCESS ...................................................................................................................................46 SETTING ASIDE .........................................................................................................................46 DEFAULT JUDGMENTS (Pt 16 UCPR) ..........................................................................................47VEXATIOUS LITIGANTS ................................................................................................................47COSTS .................................................................................................................................................48KEY TERMS ................................................................................................................................48 OFFERS TO SETTLE ......................................................................................................................48OFFERS BEFORE COMMENCING AN ACTION .......................................................................49 WITHOUT PREJUDICE OFFER .................................................................................................49 PAYMENT INTO COURT AS AN OFFER ...................................................................................49 CALDERBANK OFFERS/LETTERS ...............................................................................................49DIFFERENCES FROM OFFER OF COMPROMISE ...................................................................49 COSTS CONSEQUENCES .........................................................................................................49 OFFERS OF COMPROMISE (Pt 20, Div 4 UCPR; s 73 CPA) .......................................................50REQUIREMENTS ........................................................................................................................50 TIMING ........................................................................................................................................50 ACCEPTANCE ............................................................................................................................50 COST CONSEQUENCES ...........................................................................................................50 OTHER RULES ...........................................................................................................................51 BASES UPON WHICH COSTS ARE REWARDED ........................................................................51ORDINARY BASIS (Pt 7, Div 3 LPUL App Act; s 3 CPA) ...........................................................51 INDEMNITY (s 98(1)(c) CPA; r 42.5) ...........................................................................................52 TRUSTEE BASIS ........................................................................................................................52
4COMMON FUND BASIS .............................................................................................................52 COST ORDERS ...............................................................................................................................52WHEN COSTS ARE AWARDED? ...............................................................................................52 WHAT TYPES OF COSTS ARE AWARDED? ............................................................................52 SPECIFIC COST ORDERS .........................................................................................................53 BULLOCK AND SANDERSON ORDERS ...................................................................................53 INTERLOCUTORY COSTS .........................................................................................................54 ARBITRATION COSTS ...............................................................................................................54 PERSONAL COSTS ODERS/COSTS AGAINST LEGAL PRACTITIONERS .............................54 THIRD PARTY/NON-PARTY ORDERS ......................................................................................54 APPORTIONED COSTS .............................................................................................................54 SELF REPRESENTED LITIGANTS ............................................................................................54 SECURITY FOR COSTS .............................................................................................................54 APPEAL COSTS .........................................................................................................................54 OTHER COSTS ORDERS UNDER UCPR .................................................................................54 DISPUTES AS TO COSTS ..............................................................................................................55FINALISING PROCEEDINGS ..............................................................................................................56BEFORE TRIAL ...............................................................................................................................56AFTER TRIAL ..................................................................................................................................56JUDGMENTS ...................................................................................................................................56ENFORCING JUDGMENTS ............................................................................................................56WRITES OF EXECUTION ...............................................................................................................561) WRIT FOR THE LEVY (SEIZURE/SALE) OF PROPERTY ................................................56 2) WRIT OF DELIVERY ..........................................................................................................57 3) WRIT FOR THE POSSESSION OF LAND .........................................................................57 OTHER REQUIREMENTS OF WRITS AND THEIR ENFORCEMENT ......................................57 OTHER WAYS OF ENFORCING JUDGMENTS .............................................................................57GARNISHEE ORDERS/ATTACHMENT OF DEBTS (also see ss 117-125 CPA) .......................57 INSTALMENT ORDERS ..............................................................................................................57 CHARGING ORDERS .................................................................................................................58 BANKRUPTCY/WINDING UP .....................................................................................................58 APPOINTMENT OF RECEIVERS ...............................................................................................58 SEQUESTRATION AND CONTEMPT ........................................................................................58 SUBSTITUTED SPECIFIC PERFORMANCE .............................................................................59 CONDITIONAL JUDGMENTS .....................................................................................................59 INTERSTATE JUDGMENTS .......................................................................................................59 INTERNATIONAL JUDGMENT ENFORCEABILITY ...................................................................59 PROBLEMS IN ENFORCING ..........................................................................................................59STAYS .............................................................................................................................................59STAYS OF PROCEEDINGS .......................................................................................................59 STAYS OF JUDGMENT ENFORCEMENT .................................................................................59 PROVING STAY ..........................................................................................................................60 APPEALS GENERALLY .................................................................................................................60APPEALS IN NSW ..........................................................................................................................60NSWSC APPEALS ..........................................................................................................................61SUBJECT MATTER AND RIGHT TO APPEAL ...........................................................................61 SUMMONS SEEKING LEAVE TO APPEAL ...............................................................................61 SUMMONS COMMENCING AN APPEAL ...................................................................................61 CROSS-SUMMONS SEEKING LEAVE TO APPEAL .................................................................61 CROSS-SUMMONS ....................................................................................................................62 NOTICE OF CONTENTION ........................................................................................................62 PROCEDURE ..............................................................................................................................62
5NSWSCA APPEALS .......................................................................................................................62SUBJECT MATTER AND RIGHT TO APPEAL ...........................................................................62 NOTICES OF INTENTION TO APPEAL .....................................................................................62 SUMMONS SEEKING LEAVE TO APPEAL ...............................................................................63 NOTICES OF APPEAL ................................................................................................................63 CROSS-APPEALS ......................................................................................................................63 NOTICE OF CONTENTION ........................................................................................................63 PROCEDURE (Pt 51 UCPR; Supreme Court PN CA 1) .............................................................63 STAYS AND APPEALS ..................................................................................................................64OUTCOMES OF APPEALS ............................................................................................................64HYPOTHETICAL LIFE CYCLE OF A CASE ...................................................................................64ETHICAL ISSUES FOR LAWYERS ....................................................................................................66REGULATION .................................................................................................................................66ETHICAL ISSUES ARISING FROM THE RULES ..........................................................................66IMPACT OF TECHNOLOGY IN CIVIL PRACTICE .............................................................................68CHANGING LITIGATION ................................................................................................................68DISCOVERY ....................................................................................................................................68PRACTICE NOTES AND IT ............................................................................................................68LEGISLATION AND IT ....................................................................................................................69OTHER IMPACTS OF IT ON CIVIL PRACTICE .............................................................................69NEW ISSUES CREATED BY IT ......................................................................................................70EXAM PREPARATION ........................................................................................................................71PART A MULTIPLE CHOICE PREPARATION ...............................................................................71PART B CASE NOTE PREPARATION ...........................................................................................74PART C SHORT ANSWER PREPARATION ..................................................................................74
6INTRODUCTION TO CIVIL PRACTICE INTRODUCTION PROCEDURAL AND SUBSTANIVE LAW •Procedural law is the law that governs the conduct of court proceedings - that is, the proceedings through which a legal right is enforced (Poyser v Minors; McKain v RW Miller & Co) - Distinguished from substantive law (law which gives or defines such a right or deals with duties, powers and liabilities) - Procedural applies across many areas of substantive law – cooperates with and can in some instances influence application of substantive law •Procedural law has a significant role in adversarial system - Purposes of Civil Procedure: →Provide institutions and rules which facilitate dispute resolution →Perpetuate the rule of law →Mediate/managing the flow of litigants SOURCES OF CIVIL PROCEDURE LAW •Main sources: - Legislature: Supreme Court Act 1970 (NSW); Civil Procedure Act 2005 (NSW)- Executive (delegated legislation): Uniform Civil Procedure Rules 2005- Courts: inherent jurisdiction and implied/incidental jurisdiction •Sources in NSW: - CPA, UCPR, court rules, practice notes and precedent →UCPR applies pursuant to s 10 CPA and overrules inconsistent court rules (s 11) unless UCPR expressly says court rules are to prevail (s 11(1)) ⇒BUT court may dispense with UCPR if required (s 14) – NOT CPA! - UPCR deal with: →Part 2/3 – Case Management →Part 4 – Preparation & Filing of Documents →Part 6 – Commencing Proceedings & Appearance →Part 10 – Service →Part 12 – Discontinuance, Withdrawal, Dismissal and Setting Aside →Part 14 – Pleadings →Part 15 – Particulars →Part 18 – Motions →Part 20 – Resolution without hearing •Courts also have rules contained in their founding statute - NSW – SC Rules 1970, District Court Rules 1973, Local Court Rules 2009- These rules are made by rules committees composed of judicial officers and government representatives •Inherent jurisdiction and implied/incidental jurisdiction - Allows courts to regulate their processes and prevent abuses of process (Riley v McKay; PT Bayan v BCBC Singapore; Jago v District Court NSW) →BUT are limited by legislation and Court rules - Enables creation of specific court rules and practice notes/directions (see below) →BUT these are not legally binding – only enforceable through court orders against parties (Permanent Custodians v Kirk; Andrew Garrett Wines v NAB) - NOTE: difference between inherent and implied (DJL v Central Authority) →Inherent is only for non-statutory courts (eg. NSWSC) →Implied/incidental is for statutory courts as the powers conferred are implied from the courts’ statutory powers (eg. FCA) •Federal sources: - Judiciary Act 1903 - Civil Dispute Resolution Act 2011 - Federal Court of Australia Act 1976 - High Court of Australia Act 1979 - Federal Circuit Court of Australia Act 1999
7CASE MANAGEMENT AND THE OVERRIDING PURPOSE (GUIDING PRINCIPLES) Case Management •Case management is the approach to the control of litigation in which the court supervises or controls the progress of the case through its interlocutory phase - Allows court to overcome unreasonable delay and costs and promote the civil system as an administrator of justice for all •Every jurisdiction has overriding purpose provision – response to UK Woolf Reforms - Origins in Judicature Acts 1873 and 1875 (UK) – see French in Aon Risk Service (2009)•In NSW, s 56 seeks to identify single overriding purpose but must be considered and applied in the context of the whole Act, namely ss 57-58 (Halpin per Basten) - Just, quick and cheap in s 56 to be given equal weight – ‘just’ is not paramount like in other jurisdictions (Halpin per Sackville) •Courts must take a more robust/proactive approach to give effect to the overriding purpose (Expense Reduction v Armstrong) GUIDING PRINCIPLES Overriding Purpose (s 56) •OP of this Act and rules of court, in their application to civil proceedings, is to facilitate the ‘just, quick and cheap’ resolution of real issues in proceedings (s56(1)) •Court must give effect to OP when exercising powers under CPA/court rules (s56(2)) •Parties under a duty to assist the court to further OP, participate in court processes and comply with directions/orders (s 56(3)) •Solicitors, barristers and others with relevant interest in proceedings (eg. litigation funders, insurers) must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty in s 56(3) (s 56(4)) - Duty of parties/lawyers to assist court in furthering overriding purpose (Expense Reduction v Armstrong) •Court may consider failure to comply with s 56 in determining costs (s 56(5)) Objects of case management (s 57) •When managing cases according to OP, court must have regard to the following objects (s 57(1)): a) the just determination of the proceedings, b) the efficient disposal of the business of the court, c) the efficient use of available judicial and administrative resources, d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties •CPA/rules of court must be so construed/applied and court practice/procedure regulated to achieve these objects (s 57(2)) Court to follow dictates of justice (s 58) •Court must seek to act with the dictates of justice in deciding whether to make any order/direction for the management of proceedings (s 58(1)) •In determining dictates of justice in each case, the court must have regard to ss 56/57 and may have regard to (s 58(2)): (i) degree of difficulty or complexity of issues in proceedings, (ii) expedition of parties throughout proceedings, (iii) degree to which any lack of expedition is due to circumstances beyond the control of the parties, (iv) degree to which parties have fulfilled their duties under s 56(3), (v) parties taking procedural opportunities, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) other matters as the court considers relevant in the circumstances Elimination of Delay (s 59) •Court practice and procedure should be implemented to eliminate delay between commencement and final determination (s 59) - Helps with achieving justice Proportionality of Costs (s 60) Cases resolved in a manner that ensures costs are proportionate to the importance/complexity of their subject matter (s 60)
8NOTE: provisions led to a change from adversarialto managerialjudging (Queensland v JL Holdings (1997)per Kirby) •Judge not being a passive umpire but has more active role in the progress of the dispute, especially in supervising/controlling interlocutory stages •Ongoing involvement of judge throughout case •Judicial orders relating to case management must uphold overriding purpose and consider interests beyond the individual interests of the parties •BUT the provisions do not alter purpose of the litigation – nothing new – origins in Judicature Acts in UK in 19th century METHODS OF CASE MANAGEMENT •Standardised case management = all cases go to same place then assigned out •Differential case management = cases streamed into different tracks and managed according to their subject matter (EG: NSWSC – CL and Equity – lists in each division) •Alternative dispute resolution (see Topic 2) DIRECTIONS •Key method of case management – specified steps relating to conduct of a matter •Court has a discretion under inherent jurisdiction and CPA/UCPR to make directions Grounds: •Grounds for directions to be made under CPA: - For the speedy determination of the issues between parties (s 61(1)) - As to steps to be taken, time to be completed and any other directions with respect to conduct of proceedings it sees fit (s 61(2)) - As to conduct of hearing (s 62) →Provide for a fair hearing and give parties a reasonable opportunity to be heard (EG: orders as to evidence, orders for filing of docs) •Grounds for directions to be made under UCPR:- Court can make such directions/orders as appear convenient for the just, quick and cheap disposal of proceedings (r 2.1) - Court can appoint a hearing date at any time to make directions (r 2.2) - Court can make directions/orders regarding (r 2.3) a) the filing of pleadings, b) defining of issues, c) provision of any essential particulars, d) etc. (see r 2.3) Failure to Comply: •If a party fails to comply with any direction court may order ((s61(3)): a) dismissal b) strike out or limitation of claim c) strike out a defence made by the defendant and give judgment d) strike out/amend any document, by either party, in whole or in part e) strike out, disallow or reject evidence from either party f) direct the party to pay the whole or part of the costs of another g) any other directions or orders •Also when there is irregularity (ie. failure to comply with Act/Rules) court may (s 63) a) set aside the proceedings, any step taken in the proceedings or any document, judgment or order b) exercise its powers to allow amendments and to make orders dealing with proceedings generally •NOTE: Court can dispense with any rule requirements if it is appropriate in the circumstances of the case to do so (s 14 CPA)
9ALTERNATIVE DISPUTE RESOLUTION LITIGATION TECHNOLOGY New technology – tractor story •Great opportunities – however, different risk profiles (neighbour’s tractor flipped and he died) •Will lawyers have jobs in future? – like the tractor analogy, lawyers will still have work to do, just in different ways – tech will never replace human judgement •Creates more business opportunities •***FINISH 1:06:20 left ADR •ADR is an umbrella term for a variety of private and court-annexed dispute resolution options - ADR processes are not independent – many forms may be used for the same dispute - Linked to litigation →Preferred (and sometimes mandated) route for dispute resolution →Now seen as a preliminary step in most litigation →Often court-annexed – takes the place of court process and uses court staff such as registrars - NADRAC is heavily involved with ADR – advises Cth AG •NADRAC distinguishes between three kinds of ADR: - Facilitative (outcome determined by parties) - Advisory (giving advice to help achieve resolution) - Determinative (outcome determined by third party) - NOTE: broken down into further types of ADR under each of these kinds •AIM = make court litigation a step of last resort •Key aspect of ADR is consideration of a client/party’s WATNA, BATNA and PATNA - Worst, Best and Probable Alternatives to a Negotiated Agreement •ADR practitioners have different roles - EG: mediators are more passive whereas arbitrators make binding decisions •ADR processes continually change and are applied flexibly to suit the nature of any given dispute LEGISLATIVE FRAMEWORK •Parts 4 (Mediation ss 25-34) and 5 (Arbitration ss 35-55) of CPA 2005 (NSW)•Part 20 (Resolution without court hearing) of UCPR 2005 (NSW)- Div 1 deals with mediation - Div 2 = Arbitration - Div 3 = References to Referees - Div 3A = Conciliation - Div 4 = Compromise •Also encouraged by genuine steps statement required under s 4 Civil Dispute Resolution Bill 2010NADRAC – 7 NATIONAL PRINCIPLES FOR THE RESOLUTION OF DISPUTES 1. People have a responsibility to take genuine steps to resolve or clarify disputes and should be supported to meet that responsibility. 2. Disputes should be resolved in the simplest and most cost effective way. Steps to resolve disputes including using ADR, wherever appropriate, should be made as early as possible and both before and throughout any court or tribunal proceedings. 3. People who attend a dispute resolution process should show their commitment to that process by listening to other views and by putting forward and considering options for resolution. 4. People in dispute should have access to, and seek out, information that enables them to choose suitable dispute resolution processes and informs them about what to expect from different processes and service providers. 5. People in dispute should aim to reach an agreement through dispute resolution processes. They should not be required or pressured to do so if they believe it would be unfair or unjust. If unable to resolve the dispute people should have access to courts and tribunals. 6. Effective, affordable and professional ADR services which meet acceptable standards should be readily available to people as a means of resolving their disputes.
107. Terms describing dispute resolution processes should be used consistently to enhance community understanding of, and confidence in, them. ROLE OF LAWYERS IN ADR •Obligation to use ADR as a precondition to litigation •Advising clients on ADR methods •Structuring a dispute resolution process for a particular client or dispute •Drafting and advising on ADR provisions for agreements •Preparing information to be used in a dispute resolution process •Attending ADR processes and possibly participating •Preparing or advising on the legality or enforceability of ADR agreements •Explaining rules and limitations of confidentiality in ADR processes PURPOSES OF ADR •Resolve dispute in ways that are accessible, effective, psychologically satisfactory and procedurally fair - Make justice more accessible and affordable •Provide disputants with procedural options appropriate to the dispute - Canvass a wider range of issues than in court – e.g. Emotional, personal and commercial interests •Faster, cheaper, less adversarial and more flexible than litigation, but more regulated than leaving the disputants to resolve conflict unassisted - Opens possibility of reconciliation and ongoing personal/commercial relations - Clarification and resolution of the issues (legal & non legal) in a less formal environment •Manages risks for parties – negotiating a solution rather than being bound by the court’s and mitigates the financial and emotional strains of litigation •Case/litigation management – reduces court workload and costs for courts/parties •BUT may be inappropriate where: - Imbalance of power between parties (e.g. Bank and their customer) - Clients insist on litigation, unrealistic expectations or refuse to compromise - Highly complex legal issues - Hostile parties GROWTH OF ADR •Attempt to fulfil overriding objective: ‘just, quick and cheap’ in s 56 •View of litigation as last resort •Court openness to ADR/Court-referred or annexed (low $) mediation and conciliation •GOV agencies/complaint mechanisms/admin bodies offer ADR - greater accessibility •NADRAC – Council advising government on ADR TYPES OF ADR •Mediation •Arbitration •Adjudication •Conciliation •Expert determination •Early neutral evaluation •NOTE: limited ability to judicially review ADR (especially because often no transcript) – contentious – form of administrative review because ADR involves exercising admin discretions - Courts have taken a restrictive approach and often chosen not to judicially review (see Baulderstone v Dare Sutton; ACCC v Lux; O’Connor v AUS Postal Corp) FACILITATIVE PROCESSES •Self-determination in dispute resolution •ADR practitioner identifies issues/possible resolutions in proceedings and helps parties resolve issues themselves •Examples: - Facilitation - Conciliation - Mediation - Ombudsman
11→Third party who investigates disputes and creates a report •Facilitated negotiation ADVISORY PROCESSES •Expert guidance and direction for parties seeking to reach their own settlements - Pushes parties to settlement •Examples: - Expert appraisal →Different to expert determination because only provision of advice not making of a final determination - Case appraisal - Case presentation - Mini trial - Early neutral intervention →Used very early in the resolution process →Evaluator (normally SC) considers circumstances of the dispute and allows each of the parties an opportunity to present their case →Evaluator identifies the strengths/weaknesses of the parties’ positions and highlights the areas of agreement in the dispute →Evaluator then issues an assessment of the merits of the case, which the parties may agree will be binding or not DETERMINATIVE PROCESSES •Binding resolution to the dispute - Many determinative ADR processes occur within court litigation - More involvement of the ADR practitioner •Examples: - Adjudication →Similar to court proceedings but occurs outside the court →Adjudicator reviews evidence and submissions put forward and makes a determination as to parties’ rights/obligations →Commonly used in building and construction industry and some state governments have legislated to enable disputes over payment to be dealt with by adjudication →Adjudicator’s decision will generally be binding - Arbitration - Expert determination/referee referral (see Pt 20 Div 3 r 20.13-20.24) →Often where there is a highly technical/specific issue ⇒Expert determiners chosen because of expertise and use their knowledge to resolve the issues →Independent 3P will undertake a directed inquiry and report their findings to the court →Often provided for in contracts →See below under “EXPERT EVIDENCE” for more - Private judging - Fact finding - Early neutral evaluation - Case appraisal - Mini-trial ADR UNDER THE CPA •Seminar: enables people to reach an agreement about ‘what they can live with’ •Duty of legal practitioners (s 56 CPA; Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, r 7; Legal Profession Uniform Conduct (Barristers) Rules 2015, Advocacy Rulesr 36) •Parties to consider (pre-trial ADR – Practice Note SC Eq 1; Practice Note SC Eq 3; mediation procedure – Practice Note SC Gen 6) •Court can refer proceedings (or specific part) to mediator (s 26 CPA; Pt 4 CPA), arbitrator (s 28 CPA; Pt 5 CPA) or referee (UCPR r 20.14); see also pt 20 (resolution of proceedings without hearing)
12•Note short-lived and repealed mandatory pre-filing ADR scheme (for further discussion see Ramina Kambar and Greg Walsh, ‘A Critical Evaluation of the Pre-Litigation Protocols’ (2011) 106 Precedent 42) •NO LEGISLATION REQUIRES LAWYERS TO TAKE THE DISPUTES TO ADR BEFORE LITIGATION – ONLY INCENTIVESMEDIATION UNDER THE CPA •Seminar: Mediation looks to the needs of parties rather than their rights – looking for a resolution that the parties “can live with” •Form of facilitated settlement •Dealt with under CPA Pt 4 and UCPR Pt 20 Div 1 (r 20.1-20.7)•Structured negotiation process in which the mediator, as a neutral/independent party, assists disputing parties to achieve their own resolution of a dispute (CPA s 25) - Mediator helps identify issues and options for resolution •Facilitative role - All parties have opportunity to put forward their point of view and voice issues concerning them - Takes place in private and the session is confidential •NOTE: mediation is becoming increasingly immersed with court litigation - E.G.: judges taking more active role – comments from the bench (provisional views), pre-trial directions/orders - BUT questions over its constitutionality – non-judicial function violates CHIII COMMENCEMENT OF MEDIATION •Three ways mediation can be initiated: - Contractual clause →Parties agree to participate in mediation - One party approaches a mediator to conduct mediation and invite the opposing party to do the same - Entity other than the parties initiate mediation (e.g. Court) •Court can refer matter for mediation if it considers it appropriate in the circumstances (CPA s 26(1)) - Broad discretion – no specific criteria to consider - Factual decision made according to all circumstances and relevant statutes (Higgins v Higgins) →EG: prospects of successful mediation (Fitton v Costello), opposition of parties, timing of dispute, court resources, parties’ resources, public interest considerations (ACCC v Lux), complexity of issues, previous attempts at settlement (Harrison v Schipp) ⇒No one factor is decisive – weight to be given to each is matter for the court •Preparation for mediation varies immensely - In many cases there will be a preliminary conference to disclose information, discuss issues and settle the Agreement to Mediate if there is to be one but in others it may be different MEDIATION PROCEEDINGS •Flexibility of mediation means that there is an immense variance in procedure (Computershare v Perpetual; Yoseph v Manno) - Often opening statement by mediator to set boundaries/issues etc, then party each present, then identification of areas of agreement, then exploration of issues and exploration of options - Can also be separate meetings where mediator takes one party aside and discusses issues etc. →Very unique - does not normally occur in other forms of ADR •BUT mediation session procedure somewhat regulated by UCPR 20.6- Mediator can give directions as to conduct of mediation (s 32 CPA) - Court can also give directions about practise and procedure, including service of documents (UCPR 20.2) →Under r 20.2 may require each active party to state:
13(a) whether the party consents to referral of a matter arising in the proceedings for mediation (b) whether the parties agree as to who is to be the mediator (c) whether the parties agree as to the proportions of costs they are to bear and the terms of any such agreement →NOTE: courts now often do this to ensure that mediation is worthwhile and the parties comply (see ACCC v Westfield) - Time limits →Within 7 days after being notified that a matter has been referred for mediation, the mediator must appoint a time ⇒for the mediation and notify the parties, in writing, of the time appointed (r 20.3) ⇒for a preliminary meeting of the parties (r 20.4) →Parties and mediator must conduct the mediation with the object, so far as practicable, of completing it within 28 days (r 20.5) →Unless mediator or court directs otherwise, each party must attend (r 20.6) •Parties agree to participate ‘in good faith’ (CPA s 27) •Both docs and communications during mediation are privileged (s 30 CPA) - Unless ALL parties agree otherwise OR mediator is allowed to disclose under one of the listen conditions (e.g. consent) (s 31) - BUT if mediation results in parties reaching agreement, and subsequently party wishes to take court action against another for breach of the agreement, privilege may be waived •NOTE: reporting is often very important – appeals rely on reporting PROCEDURE POST-MEDIATION •Court can make orders to give effect to mediation outcome (s 29(1)) - Result not automatically enforceable •Costs paid according to court order (s 28(a)) or as parties agree (s 28(b)) - Often costs of failed mediation are costs in the dispute •If no agreement, then often referred to arbitration or court •NOTE: also see NSWSC Mediation Practice Note SC Gen 6 ADVANTAGES•Accessible to litigants – court annexed or independent •Controlled by the parties - Less formal and more flexible than court – but still regulated (see above) - Parties directly involved in final determination - Can resolve both commercial and legal disputes - Mediator chosen by parties •May preserve commercial relationships – less adversarial - Parties agree to participate in good faith (see above) •Shared costs - maintain relationships - especially if court annexed - Also lower costs than litigation and other formal ADR •May be voluntary – parties may withdraw at any time – mandatory mediation does not mandate settlement, but rather, the participation in the mediation process •Can be confidential and privileged (see above) DISADVANTAGES•Often not voluntary – court may order without their consent •Not every case can be mediated – long running disputes or important points of law or repeated contraventions •Can be costlier if it’s appealed or does not lead to agreement LAWYERS IN MEDIATION•Lawyers must be able to: - Understand the mediation process and make sure client understands - Understand role lawyer can play and get clear instructions - Understand the dispute and the client’s interests - Assist the client to achieve lateral solutions – beyond legal rights - Advise client in line with their entitlements - Prepare client for end game – choices must be made - Engage in appropriate advocacy during the mediation
14ARBITRATION UNDER THE CPA •Adversarial process in which an impartial third party makes a binding determination after hearing evidence - Governed by CPA: Part 5, Div 1 - 4 & UCPR Part 20, Div 2, Commercial Arbitration Act 2010 (NSW) and common law •Can be stipulated by contract, under specific legislation or court referred - Common in construction industry, shipping and business generally - Most common method of resolving international commercial disputes REFERRAL TO ARBITRATION •Court can refer parties to arbitration where there is (CPA s 38(1)) (a) a claim for the recovery of damages or other money OR (b) a claim for any equitable or other relief ancillary to a claim for the recovery of damages or other money •BUT before ordering arbitration, referring court must give directions for the conduct of the proceedings to ensure they are dealt with justly, quickly and cheaply (s 38(2)(c)) •Court CANNOT order arbitration where (s 38(3)): (a) no issue in the proceedings is contested or judgment in the proceedings has been given or entered and has not been set aside, or (b) rules of court provide that such an order may not be made in relation to proceedings of that kind, or (c) cause is otherwise shown why the proceedings should not be referred •Proceeding that cannot be referred unless consent (UCPR 20.8) (a) Where allegation of fraud (b) Small claims division of Local Court ARBITRATION PROCESS •Before it starts, Arbitration Agreement is signed by both parties and specifies all relevant matters to the arbitrator (eg. Cost, scope, arbitrator, time frames) •Jurisdiction/powers conferred on arbitrator are same as referring court (s 37 CPA) - Rules of evidence apply (s 51(1)) •Arbitration procedure determined by arbitrator (CPA s 49 - also see s 50 for subpoenas and s 51 for evidence) - Process and determination may be confidential if the parties wish – they must stipulate confidentiality in Arbitration Agreement (Esso v Plowman) →Settlement offers confidential where court proceedings are still on foot (Part 2, Div 4 UCPR) - Arbitrator decides all or some of the issues in the dispute - Arbitrator may be appointed by court or by agreement between parties →May be multiple appointed – often certain classes or institutions of arbitrators are nominated →Usually senior judicial officer or barrister (see s 36 CPA) →Can challenge appointment of a certain arbitrator (ss 12 and 13) - Takes place within an agreed time-scale, which ensures that the matter is resolved as quickly as possible - Cannot occur in presence of only one party, unlike mediation •Resembles a court process - EG: witnesses may be summoned to provide sworn testimony and other evidence may be taken - BUT less formal than the normal court process •Can refer technical aspects of the case to an expert referee (r 20.13-24) DECISION MAKING •Arbitrator determines issues after considering the evidence and then gives written reasons (s 39) (arbitral award) which is taken to be a court judgment (s 40) - Must be in approved form (r 20.11) - Can seek to have an arbitral award (judgment) set aside under (s 34) - May also see to apply for rehearing of the dispute (s 42)- Orders made as to costs by arbitrator (s 54) •Also commercial arbitration – where original contract has an arbitration clause - Covered by Commercial Arbitration Act 1984 (NSW)- Arbitrator is an expert in the area (architect, engineer)
15•Limited right of appeal from arbitral award – specific grounds prescribed by the Commercial Arbitration Act (Cth) - EG: Where parties both consent to it ADVANTAGES•Accessible to litigants – procedural flexibility •Time efficient – can take place outside court hours •Promotes use of ADR to lawyers •Cheaper – often where court ordered •Privacy and confidentiality – sensitive commercial cases •Parties can choose the arbitrator – may have specialised knowledge DISADVANTAGES •Often not voluntary – court may order without their consent •May be costly – especially where the arbitral award is to be appealed – also cost of hiring rooms etc. •Only confidential where the arbitration agreement provides it •Powers and process of arbitrator not clear •Diminish public benefit – no precedent and no development of the law •Judges are more qualified persons to resolve disputes •Parties may know arbitrator – especially if well-used arbitrator – inequality of bargaining power – favour familiar party (but opposite may be true) •Some disputes not arbitrable – e.g. Complex cases, important points of law NEGOTIATION •Refers to the way in which ADR is approached – as opposed to litigation where there is little negotiation •Various forms of negotiation are used in ADR and an experienced neutral third person can be used to facilitate negotiations - Person facilitating the negotiation does not usually advise on or determine issues being negotiate or the outcome of the process - BUT may advise on or determine the process of the negotiation DIFFERENT APPROACHES •Positional: based on parties’ respective positions or claims - Position = what a person says he or she wants – a demand- More adversarial and combative in movement towards outcome →Negotiation ‘dance’ – parties move to and from their respective positions – offers and counter offers - Traits →Each party attempts to maximise their own share →Aim is to bolster your client’s own position and diminish the other party's position to encourage capitulation →Ignores the interests of the parties →Focuses on outcomes -winning or losing -rather than the process →The process necessitates compromise - Different tactics/approaches to positional →EG: Starting with extreme position and then working away, not disclosing things until last minute, not reversing previous positions •Interest-based: exploring and satisfying interests of each party - Interest = why the person has that position – the need, desire, fears or concerns behind the demand - Focus on understanding interests of BOTH parties - Alternatives are important – not simply looking at positions but a range of possible ways to meet the interest underlying the position - More co-operative than positional – parties open to change, share information to help resolve, identifying shared interests •Constructive: blending and balancing P and I-B approaches - 4 stage process suggested by Adair and Brett →Relational positioning – working out how the other party is going to approach negotiation (ie. cooperative or competitive)
16→Exploring issues/interests – focusing on sharing information and discussing issues/possible options →Generating options – more competitive as movement into bargaining mode – energetic discussion →Reaching solutions – parties come to a resolution •10 step guide to constructive negotiation 1. Prepare – understand key issues and background information 2. Opening – depends on approach – start firm or soft 3. Sending signals about relationships and priorities – build trust 4. Gathering information – identify concerns, interests etc. 5. Agenda setting – helps structure the negotiation 6. Exploring issues and interests – understand what is driving parties 7. Generating options (possible solutions) 8. Problem solving and bargaining – offers and counter offers 9. Outcome – parties reach agreement – make arrangements for future (enforcement etc.) 10. Reflective debrief – ask questions to ensure make better choices in next negotiation BATNA ‘Best alternative to a negotiated agreement’ •Best alternative outside of negotiation, not minimum you will settle for within the negotiation •‘What is your best option if you walk away?’ •‘Things I can do on my own outside of the negotiation’, ‘Things I can do if I decide to put my negotiation on ice’: Noam Ebner, Alternatives and BATNA in Interest Based Negotation: https://www.youtube.com/watch?v=FSyABLfStXE BATNA Strategy•Be clear in your preparation and know it is ok to walk away. •What will you sacrifice in walking away (tangibles, relationships)? •Not all alternatives are desirable. •We have a range of choices, and the negotiation is one of them. •Is your BATNA better than any negotiated agreement? •List and evaluate alternatives to establish your BATNA. •Risk: BATNA and sense of entitlement? (Harvard PON research)
17PRE-LITIGATION STEPS ACCESS TO JUSTICE •Not everyone has equal access to the courts to have their civil dispute resolved •Inequalities in access to civil justice system - Often not only in access to courts but ADR/negotiation to resolve before court •Affected by personal circumstances - E.G.: resources, money, time, culture, education, location etc. •Precedent is argued to encourage inequality – reduces consideration of personal factors and considers everyone as the same OPEN JUSTICE •Public interest in open justice (Hogan v Hinch per French) •Presumption in favour of open court (John Fairfax v District Court per Spigelman) •Open court trial is seen as the best method of achieving fair, non-arbitrary and transparent administration of justice (Scott v Scott; Rinehart v Welker; Moti v R; Hogan v Hinch) •But there are limits to open justice – statute alters open justice rule (e.g. Children’s Court and Family Court) - Also Part 14 of ICCPR (but not legally enforceable in NSW because it has not been codified by Cth or State) - Also note that there is a very limited chambers jurisdiction (see TB pg 567) •NOTE: Not all court matters are open to the public CLOSED COURT PROCEEDINGS (LIMITATIONS TO OPEN JUSTICE) •Common Law: for mentally ill people or wards of the court (Scott), commercially sensitive (ABC v Parish) or security matters (Hogan v Crime Comm) - Burden lies on party seeking privacy – no right to privacy because open justice is paramount (Scott; Rinehart) •Statutory: proceedings may be conducted in the absence of the public in any of the following circumstances (s 71 CPA) (a) on the hearing of an interlocutory application, except while a witness is giving oral evidence, (b) if the presence of the public would defeat the ends of justice, (c) if business concerns the guardianship, custody or maintenance of a minor, (d) if proceedings are not before a jury and are formal or non-contentious, (e) if business does not involve appearance before the court of any person, (f) if, in proceedings in the Equity Division of SC, the court thinks fit, (g) if the uniform rules so provide NON-PUBLICATION OF PROCEEDINGS •Suppression/non-pub order proven if the (s 8 Court Suppression and Non-Pub Act) (a) order is necessary to prevent prejudice to the proper admin of justice, (b) order is necessary to prevent prejudice to the interests of the Cth or State or Territory re: national or international security, (c) order is necessary to protect the safety of any person, (d) order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving a sexual offence (e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs public interest in open justice •BUT NOTE: primary objective of the administration of justice is to safeguard the public interest in open justice (s 6 CS&NPA) Rinehart v Welker FACTS HELD •Rinehart fighting with children •Children commenced Equity proceedings to remove her as trustee •Clause in trust deed which stated all disputes to be resolved via confidential ADR not court •Rinehart commenced proceedings alleging abuse of process because non-•Tobias J erred in making order •Statute should be interpreted in way that is consistent with CL principles such as open justice •Mere confidentiality is not enough to justify a statutory suppression order
18compliance with confidential ADR clause •Tobias J granted statutory suppression order •Children sought review in CA PRE-LITIGATION STEPS AND CLIENT CARE •Pre-litigation and client care essential to meeting professional duties Examples: - Communication with client: Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, r 7; Barristers’ Rules r 36- Paramount duty to court: Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, r 3 - Other fundamental ethical duties: Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, r 4- Not cause client to breach s 56(3) CPA: CPA, s 56(4)- NOTE: also CPA & UCPR rulesas to pleadings, particulars, abuse of process etc – vital to be clear on facts of dispute from the start. PRE-LITIGATION CHECKLIST 1. Is there a cause of action? a. Statement of Claim can contain more than one 2. Who are the parties? a. Standing? A person with a disability can elect someone to stand in for them (Part 7, Division 4, r 7.14(1) UCPR) b. Parties must be legal entities – can’t sue a business name, but a corporation can be (Part 7, Division 1, r 7.1(4)(a)) c. If unidentified seek preliminary discovery d. Correct defendant e. P must plead a cause of action against each main defendant 3. Have all alternative dispute resolution options been explored? a. Send letter of demand 4. Does the client understand the cost implications of commencing proceedings? 5. Does the other side have the resources to pay any judgment? a. Are they solvent? 6. What are the relevant time limits (Limitation Act 1969(NSW))? a. Tort: 6 years from the date when damage is suffered:s14(1)(b)b. Contract: 6 years from the date of breach: s14(1)(a) – 12 years if under seal or deed: s 16c. Personal Injury: 3 years from date which the cause of action is discoverable by P OR 12 years from the act that resulted in injury or death; i. Which-ever is first to expire: s 50C(1)(a), (b) d. Work injury: 3 years from date of injury:s 151D Workers Compensation Act 1987(NSW) e. Motor Accident: 3 years from date of accident:s 109 Motor Accidents Compensation Act 1999(NSW) f. Extensions for fraud & mistake: ss 55 – 56 7. Appropriate jurisdiction? (see below)8. Are there reasonable prospects of success?a. Can be struck out (see below) or lawyers can be liable for costs of proceedings if they commence/continue proceedings without reasonable prospects of success (s 62, Sch 2 Cl 4 LPUL App Act; s 99 CPA; s 345 old LPA)9. What case management obligations do you have?a. Discovery/subpoenas/narrow issues in disputePRE-LITIGATION •Prior to commencing litigation parties should: - Take reasonable steps to resolve their disputes AND/OR - Narrow issues in dispute before commencing proceedings AND - Identify parties, important facts, relief sought, cause of action/s •Attempt to resolve dispute: - Notify other party of issues and offer to discuss them
19- Provide relevant information and docs to other party to enable greater understanding of issues - Send letter of demand - Negotiation - ADR (e.g. arbitration) →Choosing ADR process depends on: ⇒Nature of the relationship between the parties ⇒Outcomes sought ⇒Cultural norms shaping parties’ expectations →E.G.: arbitration depends on flexibility, privacy, choosing decision maker, cost, non-arbitrability of some disputes, balance of power PROOF MAKING MODEL CIVIL DISPUTE TIMELINE
20CASE ANALYSIS: PARTIES AND CAUSE OF ACTION CAUSE OF ACTION •Can have multiple causes of action BUT in one statement of claim - Joinder of causes of action occurs under r 6.18→May also separate trials if joinder is inconvenient (r 6.22) •Considerations: - What is your case theory? - What is the cause (or causes) of action? - All causes of action must be in the statement of claim - Start with your strongest cause of action then “further or in the alternative...” - Plead the material facts - Keep causes of action separate in your pleadings - Do you have alternative causes of action against the same defendant? - Do you have a different cause of action for each defendant? →E.g. as against the first defendant...as against the second...
21- You must disclose a clear cause of action against each defendant---no “scatter gun” approach STANDING AND CAPACITY •Standing is the right of a plaintiff to initiate particular proceedings •Must be an affected party with an interest in the action •Must be a separate legal entity to have standing/capacity •Standing is generally only relevant in matters with public element - E.G.: Council, class of persons etc. - Special interest test applies (ACF v Cth) - AG can initiate for matters of public wrong or grant fiat to allow private person to sue •Minors/mentally incapacitated may sue via a tutor (see r 7.13-7.18) •Standing can also be conferred by statute (e.g. Copyright Actfor owners of copyright and Bankruptcy Actfor creditors) RES JUDICATA AND ESTOPPEL•Applies post judgment •Res judicata prevents a cause of action already decided in a judgment from being brought up in another (Chamberlain v Dep Comm of Taxation) - I.E. Prevents re-litigation of claim between same parties on the same subject matter - BUT interlocutory orders on matter of practice and procedure do not create res judicata estoppel •Also gives rise to two types of estoppel - Issue estoppel = stops same parties from re-litigating an issue (not cause of action like RJ) already decided →Extends to issues that were assumed or conceded in prior litigation - Anshun estoppel (PMA v Anshun) = stops party from raising an issue on appeal that it failed to raise at first instance
22INITIATING PROCEEDINGS JURISDICTION •Determines where a dispute is heard and resolved •Service of originating process will define the jurisdiction TWO CONFERRALS OF JURISDICTION 1) Territorial (inpersonam jurisdiction) through: - Physical presence in the territory of jurisdiction (Laurie v Carroll) - Voluntary submission to jurisdiction →Express contractual agreement →Unconditional appearance filed ⇒NOTE: conditional appearance is filed where D objects to the jurisdiction – not available in NSW →Party’s conduct is inconsistent with their objection to a court’s jurisdiction (Perkins v Williams) - Statutory extension of territorial jurisdiction →Through statute allowing service outside territory (Laurie v Carroll) →E.G.: Trans-Tasman Proceedings Actfor service of people in NZ, provisions of CPA relating to international service and international service through e.g. Service/Execution of Process Act 1992(Cth)2) Subject matter - Arises from the nature of the dispute - E.G: in NSW, Supreme Court shall have all jurisdiction which may be necessary for the administration of justice in NSW (s 23 SCA NSW) - E.G.: HCA has constitutional authority to deal with matters →If not in CON(Constitution) then states/territories have jurisdiction TRANSFERALS OF PROCEEDINGS (CROSS-VESTING SCHEME) (a) Where related proceedings have been commenced and it is ‘more appropriate’ for the other court to hear the caseor if it is ‘otherwise in the interests of justice’; or (b) It is ‘more appropriate’ that the other court deal with the case plus: - apart from the cross-vesting scheme ‘the relevant proceeding or a substantial part of it’ would have been incapable of being instituted in the court in question; - extent to which the case involved an issue of ‘the application, interpretation or validity of a law’ of the receiving court, and the court would not, apart from the cross-vesting legislation, have had jurisdiction over the issue; and - The ‘interests of justice’ - Interests of justice: BHP Billiton Ltd Schultz(2004)221 CLR 400: wider than the interests of one party and looking to interests of both parties - weighing considerations of cost, expense, and convenience HIGH COURT •All appeals from State supreme courts of appeal and Federal Court •Original jurisdiction under s 75 CONFEDERAL COURT•All matters under Constitution (ss 19-20 FCA Act) •Appellate jurisdiction governed by statute SUPREME COURT •Very wide jurisdiction – although no matters covered by CHIII CON - NSW Court determined by damages at stake (eg. Supreme is over $750k) •Any jurisdiction necessary to do justice (s 23 Supreme Court Act 1970) - Inherent jurisdiction of superior courts of record to regulate their processes and prevent abuses of process (Riley v McKay; PT Bayan; Jago v District Ct) DISTRICT COURT •Like Local Court, has limited jurisdiction which arises expressly under statute or by implication from statutory provisions conferring jurisdiction (Grassby) •Granted by District Court Act 1973- $750k (s 44(1)(a)(ii)) - Unlimited in motor vehicle accidents (s 44(1)(d)) and work injury (s 44(1)(d1)) - Can hear equitable claims up to $750k (s 134(1)(h)) LOCAL COURT
23•Granted by Local Courts Act 2007– hears civil, special and criminal cases (s 9) - $100K - General Division (s 29(1)(a)) →Except PI & death which is up to $60k (s 29(2)) - $10K - Small Claims Division (s 29(1)(b)) •Exclusions (s 33) - Land title - Validity of a will - Wrongful arrest - Infringement of copyright •NOTE: cannot impose imprisonment of longer than 2 years INITIATING PROCEEDINGS: COMMENCING LITIGATION •Akilh Holdings– leading case for pleadings – purpose of pleadings to ensure procedural fairness •NOTE: Court can dispense with any rule requirements if it is appropriate in the circumstances of the case to do so (s 14 CPA) KEY CONCEPTS •Pleadings: Pleadings are documents that are exchanged between the parties to litigation, in which they set out the material facts they intend to allege at the hearing of the action. Usual pleadings are: Plaintiff’s statement of claim, Defendant’s defence, or defence and counterclaim, Plaintiff’s reply (and answer if there is a counterclaim). •Particulars: Details of the material facts on which the party relies in his or her pleadings. They limit the generality of pleadings by defining the issues. They are generally included in the same document as the pleadings. •Material facts: Facts necessary to constitute a cause of action, that specify the relief sought and any facts that are necessary to ensure that the defendant is not surprised at the hearing. •Originating process: The generic description applied to any document which actually commences a civil proceeding (i.e. statement of claim and summons). •Statement of Claim: Form of originating process used in matters when the facts are likely to be in dispute and the focus of this course. •Summons: Form of originating process used in procedures based on the matter, where party proceeds by way of affidavit rather than pleadings. •Motion: where a party applies in open court for a favourable outcome (generally used for interlocutory matters). •Notice of motion: Advanced written notice that party intends moving for a particular order. •Cause: 2 or more parties •Cause of action: substantive legal issue on which the plaintiff relies •Matter: only 1 party, no dispute with another party – e.g. a trustee applying for directions as to how to administer a trust. OVERVIEW/TIME PERIODS1. File the Initiating/Originating process – SoC or summons or cross-claim (r 6.2) a. Date of filing is conclusive for limitation defences 2. Serve sealed copy on originating parties (Pt 10) 3. Defence/Appearance filed within 28 days after service of SoC (r 14.3) 4. Reply to Defence filed within 14 days (leave required in LC) (r 14.4) 5. No further pleadings after reply, unless leave is granted (r 14.5) 6. Amendments requires consent of opponent OR leave of the court INITIATING PROCESS/ORIGINATING DOCUMENTS •Two forms of initiating/commencing proceedings: by SoC or Summons or cross-claim (r 6.2) - Both should be in appropriate form (either SoC or S) and state relief claimed (r 6.12) - NOTE: see below for when each is used •BUT there will be many pre-action protocols that must be adhered to before litigation is commenced (see above) - E.G.: disclosure, discovery, interlocutory orders, verifying reasonable prospects, attempts to settle - Also Genuine Steps statement under ss 6/7 of Cth Civil Dispute Res Act•Often wise to send letter of demand before commencing proceedings (Melbourne Uni v Williamson; Sydney City Council v Chapman)
24- Informal ADR – gives D opportunity to resolve the matter – often specifies relief that is sought - Looks serious and puts other side on notice - BUT may be inappropriate in some cases (e.g. Seeking urgent orders) TIPS BEFORE DRAFTING DOCUMENTS •Check compliance with relevant rules and practice notes •Use a good pleading textbook (eg. Bullen & Leeke) •Only plead an allegation which has reasonable prospects of success •Make sure allegations pleaded are reasonably justified by the available material •If you have to amend, apply sooner rather than later SUMMONS •Only contains legal issues – facts/evidence are filed later via affidavits •Required in proceedings where (r 6.4): (1)(a) no defendant,(b) application to appeal(c) proceedings for preliminary discovery or inspection(d) proceedings on a stated case(e) proceedings to approve a compromise or settlement(f) proceedings on an application for a transfer order under Pt 9 CPA(g) proceedings on an application for a transfer order under an Act other than Pt 9 CPA(h) proceedings (other than proceedings on a claim for damages) on any application made under any Act (2)(b) for custody of a minor (c) for appointment of tutor (d) declaration of a right(e) injunction (f) appointment of receiver STATEMENT OF CLAIM •Contains legal issues and factual issues - BUT still no evidence – only pleaded material facts/particulars (r 14.7) •Responded to with a Defence within 28 days (r 14.3) WHERE SOC IS USED •Required (r 6.3): a) for relief in relation to a debt or other liquidated claim,b) for relief in relation to a tort,c) claim based on an allegation of fraud,d) claim for damages for breach of duty and damages include:(i) damages in respect of the death of any person, or (ii) damages in respect of personal injuries to any person, or (iii) damages in respect of damage to any property, e) for relief in relation to a trust, other than an express trust wholly in writing f) for possession of land, g) for relief under the Property (Relationships) Act 1984h) for relief in relation to the publication of defamatory matter CL REQUIREMENTS OF A SOC •Must (Gunns v Marr; Markisic; Silversides v Silverstate): 1) Identify parties involved 2) Disclose P’s cause/s of action against D →Must be at least one cause of action against each D →This defines issues the court is to determine 3) Set out material facts giving rise to cause/s of action (14.7) →MATERIAL FACTS= facts necessary to support the cause of action that specify the relief sought and any facts necessary to ensure that D is not surprised during the hearing – I.E. If material facts are proven by evidence, then P succeeds →Must specify material facts with certainty to avoid embarrassment, ambiguity and unintelligibility 4) Complement MF with necessary particulars (15.1) →Particulars are the specific details of the MF set out in Pleading (15.9)
25→Enable party to identify the case they must meet (15.1(1)) →See more under “Particulars” below 5) Set out relief claimed (AKA prayer for relief) →Must be consistent with material facts and cause/s of action - E.G.: must state the parties/breach of duty of care, specify MF giving rise to the breach of duty of care, the particulars of how this breach occurred and the relief that is sought to remedy this breach •NOTE: in NSW pleadings must also be accompanied by supporting affidavit to verify their contents (r 14.23 UCPR) - Affidavit must state that the deponent believes allegations of fact are true (r 14.23(3)(a)) or untrue (r 14.23(3)(b)) or that does not know after making reasonable inquiries (r 14.23(3)(c)) - Further verification may be ordered by the court (r 14.24) •NOTE: per r 6.5 (for SoC) and 6.6 (Summons) UCPR proceedings commenced by SoC that should have commenced by Summons or vice versa may still be taken to have been duly commenced •NOTE: in FCA must attach certificate to verify pleadings (r 16.01 FCR) •NOTE: in FCA there is also a Fast Track process where no pleadings are made but proceedings proceed by affidavit (r 8.05 FCR; FCA PN CM 8 Fast Track) DRAFTING PLEADINGS PLEADINGS (Pt 14 UCPR) •DEFINITION(Uniform Civil Procedure Rules Dictionary): includes a statement of claim, defence, reply and any subsequent pleading for which leave is given under Part 14- DOES NOT include a summons or notice of motion →Because do not need to comply with pleading rules (e.g. provide particulars) in a summons or NoM •PLEADINGS are documents exchanged between parties to a litigation – usually in the form of a written statement of issues identifying the questions of fact and law to be decided by the court •MUST state with sufficient clarity case the other side has to meet (Banque Commerciale v Akhil; Pancontinental Mining v Posgold) •Purpose (Gunns v Marr; Banque Commerciale; Bruce v Odhams): - Ensures procedural fairness as D knows case against them(Phillips v Phillips; Akhil) →Prevents trial by ambush or surprise - Identify issues of law and fact to be determined - Helps Judges determine relevant evidence and make rulings on interlocutory processes – enable case management - See whether case has reasonable prospects (Sch 2 LPUL App Act)•Pleading documents include (each can be amended with leave of court): - Statement of Claim - Defence - Reply - Cross Claim - Defence to Cross Claim •Language of pleadings: - Must be specific – no generalisations - Use active voice - Prefers verbs over abstract nouns (E.G.: D collided with NOT the D came into collision with) - Do not use stock phrases/legalese SPECIFIC RULES FOR DRAFTING PLEADINGS (Pts 14/15) •Divided into paragraphs (r 14.6(a)) - Each matter in different paragraph (r 14.6(b)) - Paragraphs must be numbered consecutively (r 14.6(c)) - Makes it easier for D to respond and for Judge to understand case/issues •As brief as the nature of the case allows: (r 14.8)
26•If documents or spoken words are referred to then their effect must be stated, although their precise terms need not: (r 14.9) •Facts presumed by law to be true (14.10(a)) or facts that must be proved by the opposite party (14.10(b)) need not be pleaded •Must not claim an amount for unliquidated damages: 14.13(1)•In SoC (14.14(1)), Defence and other subsequent pleadings (14.14(2)), must plead matters specifically so they do not take the other side by surprise •Defendant’s pleading of contributory negligence must be specific: 14.16•Allegations of fact raised in different pleadings must be consistent: 14.18•May raise any point of law: 14.19•Must not plead the general issue: 14.20•Must be verified by affidavit (14.23(2)) – see more above •Must provide all necessary particulars (15.1) - enable opposite party to identify the case that the pleading requires him or her to meet •Must give particulars as to any allegations of fraud, misrepresentation, breach of trust, wilful default or undue influence: 15.3 – see more below •Contain a summary of material facts not evidence: 14.7- Only plead MF that are necessary and sufficient to constitute the cause of action pleaded - Mere argument should not be included (Williamson v London) - All legal conclusions must be supported with MF (TPC v David Jones) •Allegations in pleadings are taken to be admitted unless denied by the opposite party (14.26(1)(a)) or a joinder of issues operates as a denial (14.26(1)(b)) •NOTE: form and content of pleadings will vary according to jurisdiction •NOTE: plaintiff is person who lodges SoC or Summons in Supreme Court BUT in FCA they are called an applicant – person lodging NoM anywhere is also called an applicant PARTICULARS •PARTICULARSare the specific details of the MF set out in the Pleading (15.9) - Enable party to identify the case they must meet (15.1) (Mummery v Irvings) - May cure inability to understand a cause of action or clarify the inadequacy of MF (Beach Petroleum v Johnson) - Limit generality of pleadings, narrow issues and enable parties to check facts (see Bailey v FCT) •If incomplete particulars - other party may request proper particulars produced in amended pleadings (r 15.10) - Thus, rare for pleading to be struck out for lack of particulars – just amended •Compulsory for certain allegations (see Pt 15 below) •NOTE: particulars will not cure defective pleadings because they are not pleadings and opponent cannot plead anything in response to particulars - Cannot be used to fill gaps of fundamental allegations in SoC (Gunns v Marr) - BUT see above re: clarification •Example:
27RULES RELATING TO THE INCLUSION OF PARTICULARS •Pleadings must include particulars where necessary (governed by Pt 15 UCPR) - 15.1 Pleadings must give all necessary particulars - 15.2 Use of “Scott Schedule” in building, technical and other cases - 15.3 Allegations of behaviour in the nature of fraud - 15.4 Allegations as to condition of mind - 15.5 Allegations of negligence and breach of statutory duty in tort - 15.6 Claims for out of pocket expenses - 15.7 Claims for exemplary damages - 15.8 Claims for aggravated damages - 15.9 Manner of giving particulars - 15.10 Order for particulars - 15.11 Particulars concerning claims under Property (Relationships) Act 1984•As above, compulsory for: - Claims of fraud, misrepresentation, breach of trust, wilful default, undue influence (r 15.3) - Negligence (15.5) - Contributory negligence (14.16) - Defamation (16.19) - Out of pocket expenses (15.6) JOINING PARTIES •Governed by UCPR(see 6.18 to 6.29) •All relevant causes of action between the same parties should be dealt with in the one proceeding (Dow Jones v Gutnick) •Plaintiffs can join in the same proceedings where each has a right to relief arising out of the same transaction(s) AND if there were separate trials, there would be common questions of law or fact (r 6.19) - Consent of proposed P is required to join them as a P (r 6.25) - Court may grant leave for plaintiffs to join in the same proceedings in consideration of the Guiding Principles (r 6.21) - May be retrospective (ie. after proceedings commence) (r 6.24) •Defendants can be joined if the claim for relief against each defendant arises from the same transaction(s) AND the cause(s) of action gives rise to common questions of law or fact (6.19) - Consent NOT required to join as a D - All jointly liable Ds must be sued in same proceedings (r 6.21) •NOTE: non-party can apply to be joined (6.27) and court can order separate trials if the joinder is inconvenient (6.22) CONSOLIDATION •Procedure that allows different proceedings to be brought together because hearing the causes of action together or one after another would be more time/cost efficient (r 28.5)
28SIGNATURES •Represented parties - by Solicitor or agent (4.4) •Unrepresented party - by that party, unless another person is authorised [eg. tutor] (7.14) •Party must verify allegations in pleadings are true to best of their knowledge (rr 14.23, 14.24) - Also important for signature of affidavits SERVICE GENERALLY •Service is the act of delivering or exhibiting a writ, summons, complaint or order by an authorised person to a party or person to an official proceeding - “Process server” is the person who completes the service process •Regulated by Part 10 UCPR, rules of court [for intl. service] and Service and Execution of Process Act 1992(Cth) [for interstate service – in force by r 10.4] •Purposes: - Ensures a document is brought to the attention of the person being served - Determines the jurisdiction - Upholds natural justice – informs D of the case against them •Key difference between (each acknowledged as legit in r 10.5): - Personal service = where person must be served in person (note exceptions) - Ordinary service = where service may occur other than by physical means →Often for everything but originating process - Substituted service (see below) •Also special rules for service of: - Certain parties (e.g. corps, partnerships, agents, spouses, infants, Crown) - Certain types of actions (e.g. action for recovery of land and motor vehicle accident victims) - Persons out of jurisdiction WHEN SERVICE IS NECESSARY •Service required for all documents filed in a proceeding, unless court orders otherwise (r 10.1) •Proceedings cannot commence without service of pleadings (r 6.1; Laurie v Carroll) •Service also ensures proceedings can continue – party cannot be heard except by leave of the court unless (r 78.59 NSWSC Rules): - Defendant entered an appearance OR - Issuing party has filed with the court an affidavit of service (detailing how it was served/when – see Form 41) of the notice on the addressee OR - Issuing party has filed with the court an affidavit stating that the notice has not been served on the addressee and explaining why not •Exceptions to service: - Documents relating to ex parte applications - Requests for issue of subpoena - Documents excluded by practice notes or specific orders of the court ACTION AFTER SERVICE OF ORIGINATING PROCESS •After being served D may: - Do nothing – default judgment may follow - File a Defence - Enter appearance stating the action will be defended + providing an address - Enter a conditional appearance, objecting to court’s jurisdiction because of no nexus between action and jurisdiction OR P tricked D into coming into jurisdiction to serve them (NOT IN NSW) - If HCA, enter submitting appearance (HCR r 23.02) •BUT D may waive irregularities in service and submit to jurisdiction by: - Entering a contract for consensual service - Taking steps against the action – filing defence or appearance - Entering the jurisdiction to enter service (Perrett v Robinson) - Instructing solicitor to accept service PROOF OF SERVICE•Service is proven through an affidavit of service (r 35.8) - Service of originating process must be documented after it occurs (usually through affidavit)
29→Unless D enters an unconditional appearance, Defence is filed or D’s solicitor indorses •Server AKA process server must also prove their identity (r 10.27) - Evidence of a statement by a person of their identity or their holding of an office is taken by the court to be evidence of their identity/office (r 10.27) ORDINARY SERVICE •Occurs by sending or delivering a document to a party’s proper address (10.5) - Cheaper and more convenient – no personal contact needed - Address is the address specified in originating process or appearance •Can occur by: - Fax – only where solicitor is recipient (10.5(2)-(3)) - Post (10.5(1)(b)) - DX – only to solicitor’s DX box (10.5(2)) - Electronically (3.8 and 10.5(2)(c)) - Where person does not give appearance or takes no active part after making appearance by filing with the court (10.16) - Court serving an order, notice or other document (10.7) - Where substituted/informal service is granted (10.14(3)) PERSONAL SERVICE •Personal service = leaving a copy with the person OR if not accepted by putting it down AND telling nature of the document (r 10.21) - Reverses CL method of service from Ainsworth v Redd- May be carried out by P or their agent (Thomson v Pheney) •Personal service method varies according to parties being personally served: - Businesses = on a person apparently engaged in the business (16 yrs old +) OR addressing to D and posting it to any place at which business is carried on under the business name (10.9, 10.10) - Corporations = on a principal officer (10.22) - Solicitor = acceptance by the party’s solicitor (10.13) WHERE PERSONAL SERVICE IS REQUIRED •For originating process (r 10.20(2)(b)) - Determines the jurisdiction and is therefore crucial (Laurie v Carroll) - D only needs to be in jurisdiction for a short time to serve (Colt Industries) - As per in personam jurisdiction, proceedings initiate even without an action arising in that jurisdiction – unless fraud in getting D inside jurisdiction →NOTE: even though may validly serve and commence proceedings, some claims will not be able to be heard by that court because it may not have jurisdiction to hear the matter (eg. FWA claim in NSWSC) •Secondary originating processes (eg. Joinder) •Documents initiating contempt proceedings •Injunction orders •Where required by statute, rules or court order •Notice of Motion against a non-active party (18.5) •Judgment against whom orders are given (42.8) •Subpoenas upon the addressee (33.5 for SC; 10.20(2)(d) for D or Local) EXCEPTIONS TO PERSONAL SERVICE •Where parties agree to service in another way (r 10.6) •Where a solicitor accepts service on behalf (10.13) – solicitor must have instructions to accept service AND undertake in writing to accept service/indorse acceptance of service/enter an appearance - Service deemed to have occurred on date of indorsement (10.13) •Where court orders substituted service (see below) •Where appearance or unconditional notice of intention to defend is entered •NOTE: after originating process is served then no need for personal service as parties will have each other’s addresses – just ordinary service needed - E.G.: just email the Reply or affidavit rather than personally serving it SUBSTITUTED SERVICE •Occurs by court order – where court orders alternative steps for service (Bulldogs)
30- Purpose is to bring proceedings to knowledge of D (Miscamble; Porter) •Ordered where: - A document cannot be practically served on a person (r 10.14(1)(a)) OR - Cannot be served in the manner provided by law (r 10.14(1)(b)) •Service in accordance with 10.14is taken to be personal service (r 10.14(4)) •Application under r 10.14must be supported by affidavit which states the person’s whereabouts, why they cannot be served and communication between them and the server (r 10.14(3A)) •Court may order service according to any method – as long as likely to bring proceedings to attention of D - May order that service occurs on the happening of a specified event or on the expiry of a specified time (r 10.14(2)) - E.G.: Bulldogs v Williams – service on Toulon, Williams, manager, email •SS should not be ordered if: - There is a practical possibility of actual service (Paragon v Burnell; Alstrom v Sirakas) - Method of substituted service will not in all reasonable probability, bring proceedings to D’s attention (Porter v Freudenberg; Miscamble) - Personal service would not otherwise be legally permissible •NOTE: once service occurs and still no appearance then P can proceed and may seek summary judgment – but need leave for intl. service (see r 11.8AA; Bulldogs v Williams) SERVICE OF JURISDICTION •Can occur in two ways: - Service outside Australia – regulated by UCPR 11 (11.1-11.8)- Service outside jurisdiction but in Australia – governed by Service and Execution of Process Act 1992(Cth)→Specifies service in any part of Australia for Initiating process (s 15) & Subpoenas (s 29) in Local or District Court DEFENDING PLEADINGS •Forms for defending pleadings: - For SoC use a Defence and file within 28 days of service (r 14.3) →Form 7A or 7B - For Summons use an Appearance and file before return date (r 6.9) →Form 6 →Can withdraw appearance (r 12.5) •Formalities of a Defence: - Same drafting rules apply to D as for all pleadings (see Pt 14 and above) →BUT allegations of fact which are not pleaded to in a Defence will be admitted as true (r 14.26) →Cost consequences if party fails to admit a fact or document in Defence that should have been admitted (rr 42.8, 42.9; Gordon v Gordon) - Like SoC, Defence can plead a case in the alternative →BUT must make it clear that inconsistent defences are in the alternative •In Defence, D may: - Admit the allegations – no evidence required - Admit the allegations but explain further - ‘confess and avoid’ - Deny (or traverse) allegations made by P - Allege additional facts that put a different light on P’s alleged cause of action - Plead some legal problem with P’s claim (eg. Limitation Act defence) - Plead some kind of set-off or offsetting claim (s 21 CPA) →Partial defence where mutual debts exist and a D can ‘set off’ part of the debt owed to the P →Must be a debt (IE. a liquidated claim) ⇒Unliquidated amounts or amounts that are not due cannot be claimed by set off - Seek strike out/summary dismissal •D may also: - Plead a cross-claim – separate from Defence (s 22 CPA; Pt 9 UCPR) →This is an independent and parallel cause of action against 3P or P
31⇒Relates or is connected to the subject of existing proceedings →Unless court allows otherwise, must file within 28 days of SoC (r 9.1(1)(a)) or before return day of summons (r 9.1(1)(b)) →3P joins proceedings (cross-defendant) and is bound by judgment TIPS ON HOW TO DEFEND A CLAIM 1) Analyse the claim - Any defects? →Within limitation period →Correct jurisdiction →Procedural errors →Formal requirements →Correct parties - Cause of action disclosed? →If not, request strike out under r 14.28- Sufficient particulars per r 15.1→If not, request for further and better particulars 2) Obtain general instructions from client - Responses to parts of the pleadings? →Admit →Deny and provide reasons or different version →Did not know →If no response, admission presumed (r 14.26) ⇒Must therefore respond to all →NOTE: costs can be awarded against you for matters denied which ought to have been admitted - Investigate allegations to ensure sufficient evidence to substantiate client's version of events & define matters in issue - Initiate cross-claim if desired 3) Consider the issues and develop case theory - Grounds of the defence? - Cause of action - Defence arguable on merits? →Reasonable prospects of success (s 62, Sch 2 Cl 4 LPUL App Act) - Material facts which establish elements - Is there a potential cross claim? - Should other parties be joined? - Defence must adhere to the Rules of Pleadings & Particulars AMENDMENTS •Amendment involves making a change to a civil document •At any stage P may, without leave, amend a SoC within 28 days of filing (19.1(1)) - D may amend defence within 14 days of date of amendment to SoC (19.1(2)) •Court may disallow amendments to pleadings upon application of a party (r 19.4) •After 28 days, two types of amendments to docs/pleadings may be made: - Necessary - correct errors/defects in the proceedings, determine real issues and avoid multiplicity of proceedings (s 64(2)) →Subject to dictates of justice in s 58, must be made (s 64(2)) →Must not raise entirely new issues; must not be at the last moment; and must relate to the relevant dispute that already exists (AON Risk) ⇒Otherwise it is not ‘necessary’ – although subject to c’s leave - Discretionary – need court’s permission (s 64(1)) →Often to correct a mistake, clarify issues, address an omission →Application for leave to amend must be accompanied by NoM (42.6) and supporting affidavit - not easily granted by the court (AON Risk) •Amendment takes effect from date of original doc NOT of amendment (s 65) •Practically, on a document, amendment can occur through striking out (for removals) or underlining/italics (for additions) (r 19.5) DEFECTIVE PLEADINGS •See below under “Disposal of proceedings” for grounds of defectiveness
32REMEDYING DEFECTIVE PLEADINGS 1) File amended pleadings - Remedying flaws identified by parties/court - Failure to file amended pleadings may result in Court order for proper particulars and adverse costs orders 2) Delivering further and better particulars - Court may make such an order (r 15.10) - If still not provided then pleadings can be struck out totally or in part (r 13.4) 3) Strike out order - See below under “Disposal of proceedings” 4) Seek summary dismissal/disposal of entire proceedings (Pt 13 UCPR) - See below under “Disposal of proceedings”
33EVIDENCE IN PROCEEDINGS •Evidence is admitted material that supports a case or argument •Evidence can be admitted in one of two ways: - Witnesses →Oral testimony (r 31.1), sworn affidavits/witness statements (r 31.4), expert witnesses/reports - Exhibits (r 35.6) →Documents, photos, reports, records, objects tendered •Evidence is admitted subject to the rules of evidence in Evidence Act 1995 (NSW)- EG: must not be privileged – a person may object to producing a doc or answering a question based on privilege (r 1.9; Evidence Act) KEY TERMS •Affidavit: Evidence of a witness reduced to writing which is sworn or affirmed. •Discovery: Pre-trial processes whereby one side looks at the other side’s documents or administers interrogatories to the other side, includes preliminary discovery. •Preliminary discovery: Discovery that takes place before commencement of proceedings for purpose of ascertaining whether they should commence proceedings or for purpose of locating whereabouts/ascertaining identity of someone. •Interrogatories: Specific questions related to the issues in the pleadings to be answered on oath. •Notice to admit: Notice to another party requiring them to admit facts relevant to the pleadings. Failure to answer a notice results in an implied admission to those facts. •Subpoena: A court order requiring a person to attend court for the purpose of providing documents or giving oral evidence. •Conduct money: A sum of money or its equivalent, such as pre-paid travel, sufficient to meet the reasonable expenses of the addressee of attending court as required by the subpoena and returning after so attending. Provided to a party who is served with a subpoena r 33.1. •Notice to produce: Notice served on party to produce any specified document or thing on another party. AFFIDAVITS (Pt 35) •Affidavits used to support or go against applications - Must be filed and served before they may be used in court •Can be both procedural (verifying pleadings or listing documents) or substantive (setting out witnesses’ evidence) •Formal matters in affidavits are governed by CPA, Court Rules and Conventions (often PNs) and substantive matters (content) governed by Evidence Act•NOTE: trend of using affidavits over oral evidence to reduce hearing times •NOTE: in NSW hearsay rule applies to interlocutory AND main proceeding affidavits – unlike other jurisdictions where simply need to state where the hearsay originated •Also: if you want it back, make it an exhibit FORM •Name at the top •Numbered paragraphs – set out the evidence clearly •Jurat at the bottom – stating full name of deponent, location taken, name and title of person before it was taken and oath/affirmation r 35.7A•Pages to be numbered contiguously (a court can reject it on that problem alone) •Annexures up to 50 pages, otherwise must be exhibits •If an affidavit has been filed in other proceedings, it can’t be used in another (House v The King) •NOTE: always hold on to originals and give copies to the court OATHS AND AFFIRMATIONS •Witness must affirm or swear affidavits (Pt 5 Oaths Act; Pt 2.1, Div 2 EA) - Must give oath or affirm that it is binding on their religion or conscience - Persons who can be deponents are listed in (r 35.3) - Penalties for falsely swearing affidavits in (r 29-22) •Each page must be signed by deponent & person before whom it is sworn: (r 35.7B)
34CONTENT •All content must be relevant (s 55 EA) to the issues before the court •Identify deponent and their relationship to the dispute •Use witness’s own words •Annexures and exhibits may be attached (r 35.6) •Conversations: Use first person – “I said, she/he said” •Only state facts of personal/actual knowledge – no opinions, unless expert witness (s 76 Evidence Act) •No false statements (Bourke v Davis; ss 29-33 Oaths Act 1900) •Evidence may be given through interpreter (FIlios v Morland; Dairy Farmers v Acquilina) - BUT if allowed, affidavit must be in English, accompanied by original version in the other language (Re Pakuza) RELEVANT UCPR PROVISIONS 35.1Irregularity does not invalidate affidavit 35.2Cross-examination of deponent – Parties can require attendance for cross- ex and re-ex on affidavit evidence 35.3Persons who may make affidavit 35.3AHeading to affidavit must include the name of the deponent and the date on which the affidavit is made 35.4Format of affidavit dealing with more than one matter 35.5Alterations can be made by initialling/signing next to them 35.6Annexures and exhibits 35.7Affidavits by persons who cannot read 35.7AName of legal practitioner/commissioner for affidavits on affidavit 35.7BEach page of affidavit to be signed 35.8Affidavit of service not to annex copies of filed documents 35.9Filing of affidavits Affidavit Example:
35EXHIBITS •Governed by r 35.6 UCPR- Normally records produced in reply to notice to P, subpoena or discovery •Get into evidence by exhibiting it to an affidavit or tendering it separately and get it marked as a proceeding exhibit - Exhibits attached to affidavits must not be filed (r 35.6(5))
36•Can also be adduced during hearing through docs presented to witnesses or subpoenaed records which are then marked as proceeding exhibits PRELIMINARY DISCOVERY (Pt 5 UCPR) •Used before commencing proceedings - not an interlocutory application - Consistent with OP – helps identify proper parties (and whereabouts), real issues and prospects of success •Occurs after filing and personal service of a Summons or Notice of motion seeking prelim discovery, supported by an affidavit (r 5.2(7)) - Must make reasonable inquiries BEFORE making an application •Involves examination of a person (oral testimony in court) or docs to determine: - Identity OR whereabouts of a party (r 5.2) - Whether you have a case or not (also relevant prospects of success) (r 5.3) →Can get discovery against a non-party (r 5.4) àThis will help determine if you have an action against them àEG: hospital docs to check if proper hygiene standards were complied with for a claim of negligence causing infection •Privilege is still protected (r 5.7) •Court has power to make costs order re: prelim discovery (r 5.8) DISCOVERY (Pt 21) NOTE: see above for Preliminary Discovery •Way of producing evidence (like by affidavit) – production of documents for inspection before the court - Only takes place after pleadings have closed (Palavi v Radio 2UE) →NSW Equity Div – only after evidence has closed, unless exceptional circumstances necessitate disclosure (Eq PN 11) – bypass with NtP →Whole process of discovery must take place with consideration for s 56 (Palavi v Radio 2UE Sydney) •Discovery orders are made on the application of one/both parties - BUT parties can agree on appropriate orders for discovery (by consent) - ALSO can informally discover docs between themselves DOCUMENTS THAT MAY BE SUBJECT TO DISCOVERY •Court orders discovery of documents within a class (r 21.2(1)(a)) or sample of documents from such classes (r 21.2(1)(b)) •Documents must be relevant to fact in issue (r 21.2(4)) •Doc may be specified in the order by referring to (r 21.2(3)): (a) facts in issue (b) describing the nature of documents and their period of creation (c) any such other matter the court thinks appropriate-BUT docs cannot be specified in more general terms than the court considers to be justified in the circumstances (r 21.2(2))-Order must also specify the appropriate party against which the order to produce a class of documents is made•Docs excluded from discovery (r 21.1):(a) any document filed in the proceedings,(b) any document served on party A after the commencement of the proceedings,(c) any document that wholly came into existence after the commencement of the proceedings,(d) any additional copy of a document included in the list of documents, being a document that contains no mark, deletion or other matter, relevant to a fact in question, not present in the document so included,(e) any document comprising an original written communication sent by party B prior to the date of commencement of the proceedings of which a copy is included in the list of documents•NOTE: no discovery for personal injury claims, unless court orders (r 21.8)DISCOVERY PROCESS 1. File and serve NoM seeking discovery of a class of documents -NoM must specify the documents and orders sought in compliance with (r 21.2)(Priest v NSW – also see SC PN Eq 11 and FCA PN 5)
37-AND be supported by affidavit (Vaughan v Dawson) 2. Interlocutory hearing -Court will grant or refuse discovery for each class of documents sought and make formal orders accordingly -BUT not needed if parties agree on orders for discovery – consent orders 3. Parties have 28 days from order to prepare list of docs which must include(r 21.3):-Supporting affidavit: (r 21.4(2))-List split in two parts – one dealing with docs in possession and other part dealing with documents not in possession but have been in the last 6 months (r 21.3(2))-Brief descriptions of docs (r 21.3(2))→If B doesn’t have access to docs, description must state (r 21.4(2)):àWho they believe to hold the docs ORàThat B has no knowledge as to the existence of the docs-Whether any privilege is claimed and why – must still discover them though (r 21.3 and 21.4) -Solicitor’s certificate of advice (verifying the Rules/obligations explained to client): (r 21.4(3)) -BUT do not need to include ‘excluded docs’ (see r 21.1(1)) 4. Party must make documents readily accessible and capable of convenient inspection (this includes electronic documents such as word files or pdf files that may be appropriate – link to law and technology) (r 21.5)5. Continuing obligation to produce documents subsequently found which fall within the orders (6 months after proceedings commence)(r 21.6)6. At all times act in accordance with Professional Conduct Requirements -Docs produced cannot be used by a party for any other purpose but the present litigation (r 21.7) Also see Practice Note SC Eq 11NOTICES TO PRODUCE (Pt 21 and 34; Form 19 and 24) •Issued before (Part 21, Div 2) or during (Part 34) a hearing •Relates to specific documents that are known to exist -Unlike discovery which refers to broad classes •NOTE: different from subpoena because it requires non-party to produce directly to a party and NOT the court (unless during hearing – see below) •NOTE: now commonly used to avoid the operation of NSWSC PN 11-Issue notice to produce to obtain documents before putting evidence on – because cannot get discovery, even by consent, where evidence has not been put on per NSWSC PN 11BEFORE HEARING •Can only issue NtP after pleadings have closed •Each party may issue a notice to produce to require the other to disclose docs: -Referred to in any originating process, pleading, affidavit or witness statement (r 21.10(1)(a)) OR -Any other doc/thing relating to matters in issue (r 21.10(1)(b)) •Given ‘reasonable time’ (taken to be 14 days or longer per r 21.11(2)) to produce the required docs/thing -Onus on receiving party to decide whether doc is relevant to a fact in issue →May reply with notice stating the document is privileged or no knowledge of existence of doc. •No NtP in personal injury proceedings unless court orders otherwise (r 21.12) •Court may order costs for compliance (r 21.13) DURING HEARING •Each party may issue a notice to produce ‘any specified document or thing’ (r 34.1) -Party must produce the document/thing WITHOUT need for a subpoena if it is in their possession (r 34.2) -Produced to the Court NOT Party (r 34.1(2)) •Court may order reimbursement of any reasonable loss or expense incurred by the party required to produce (r 34.3)
38FORMAL REQUIREMENTS OF NtP •Must (Penrith Rugby v Brown): 1. Clearly identify the document(s); and 2. The fact in issue it goes towards (AG NSW v Chidgey; s 55 EA) and 3. Must be for a legitimate forensic purpose NOTICES TO ADMIT (Pt 17; Form 17) •Way to narrow matters to "real issues in a dispute" – reduce time and costs •Notice to admit either: -Specific facts (r 17.3) – when facts not seriously in dispute; OR -Authenticity of discovered documents (r 17.4) – can then tender as evidence •14 days to respond with a notice of dispute or presumed to admit (r 17.4(2)) •Admissions limited to use in the specific case (r 17.6) •If party fails to admit facts or authenticity of documents unreasonably, they can be subject to costs orders (r 42.8 and 42.9) •NOTE: now more popular due to demise of interrogatories – NtA does not require leave like interrogatories INTERROGATORIES (Pt 22; Forms 21 and 22) •Leave required (r 22.1(2)) •Rarely used now – due to leave – usually only in highly technical areas •Where a party must answer specific questions: -Can be ordered at any stage in the proceedings -Must be necessary at the time made (r 22.1(4)) -Scope of questions determined by the pleadings →Must relate to issues in the pleadings (Lang’s case) -Can be tendered as evidence -Usually verified by affidavit •Not in personal injury – unless “special circumstances” exist (r 22.1(3)) •Not available for fishing expeditions, or vexatious purpose •Insufficient answers can prompt order for further interrogatories, dismissal, or strike out (22.3requires sufficient answers, 22.5if insufficient) SUBPOENAS (Pt 33) NOTE: not a substitute for discovery •Court order issued to parties OR non-parties for: -A schedule of documents to be produced at court (r 33.2(a)) OR to attend to give evidence (r 33.2(b)) OR to do both (r 33.2(c)) •Two types (may include doing both): -Subpoenas to give evidence – written order that requires the person or corporation named to produce a document or thing for evidence -Subpoenas to attend to give evidence – written order that requires the person named to attend Court to give evidence REQUIREMENTS •MUST have a legitimate forensic purpose for seeking docs and establish that the documents will assist the case in a material way (AG NSW v Chidgey) -Personal service required (r 33.5(1)) -Must also serve copies on other active parties (r 33.5(2)) -Step up from notice to produce -Form specified by (r 33.3) •Leave required to inspect documents produced to the Court (r 33.9) -Usually in subpoena office of the court DEALING WITH SUBPEONAS ON FOOT •Compliance by attending to give evidence and producing the subpoena (r 33.6(4)(a)) or delivering/sending document and subpoena to court (r 33.6(4)(b)) •Non-compliance = contempt of court, can be arrested (r 33.12) -May also be liable for costs caused by default (r 42.27) •DO NOT need to comply if claim privilege or get subpoena set aside •Subpoenaed party may obtain conduct money (see definitions above if needed – r 33.1) for reasonable costs incurred in responding to subpoena (rr 33.1; 33.6; 33.11)
39SETTING ASIDE SUBPOENAS (ABUSE OF PROCESS) •Person with ‘sufficient interest’ may apply to set aside a subpoena (r 33.4(1)) •Grounds determined by common law: -Fishing expedition/substitute for discovery (NSW Comm of Police v Tuxford; NSW Comm of Police v Small) →To discover whether you have a case at all -Oppressive (Tuxford): →Insufficient clarity of documents called to produce →Compliance is too onerous (e.g. docs in many locations) -Improper purpose or no legitimate forensic purpose (Chidgey) -Irrelevant documents (Trade Practices Commission v Arnotts) EXPERT EVIDENCE (r 31.18) •Experts required give opinions on a fact or issue to assist the court (generally on matters beyond judge/jury’s knowledge) based on their professional knowledge/experience •Leave required (r 31.19) -Exception to the opinion and hearsay rules (s 79 EA – see below) •Court has control over expert evidence to (r 31.20; 31.17): -Ensure evidence is reasonably required to resolve the proceedings; -Appoint only one expert if practicable – avoid unnecessary costs (SC PN 10) →May have two experts if the interests of justice require •Court may appoint expert witness itself when (r 31.46) -Parties did not intend to call an expert; or -Court believes that the parties’ experts are, or will be, unsatisfactory •Experts must comply with Code of Conduct (r 31.23; Schedule 7 UCPR) REQUIREMENTS (s 79 EA; Dasreef v Hawchar) •Must have specialised knowledge of an issue before the court based on their training, study or experience AND •The opinion is wholly or substantially based on that knowledge JOINT CONFERENCE (r 31.24; SC PN 11) •An informal pre-trial meeting between experts retained by the parties •Narrow issues for trial by agreeing, disagreeing on issues -Promotes overriding purpose -Reasons typed into a report (r 31.26) EXPERT REPORTS •Formatting requirements (r 31.27) •Serve on all affected parties (r 31.28) •For Professional Negligence claims (except lawyer negligence) -File and serve with SoC and set out (r 31.36): →Breach of duty of care or contractual obligation alleged AND →Nature and extent of damage alleged AND →Causal relationship b/w the breach, or obligation, and damage alleged
40INTERLOCUTORY APPLICATIONS •Applications made before or during proceedings which do not finally determine right/duties/obligations of the parties (Brown v Phillip Morris; Kowalski v MMAL) •Two overarching types: -Seeking orders relating to the management of the litigation (e.g. formalities of documents) →IE. amending pleadings, subpoenas -Seeking orders to preserve the status quo pending judgment →IE. injunctions, mareva orders •Applications made by notice of motion -Party affected should be served with NoM (r 18.4) – although can be dispensed with in cases of urgency (s 14 CPA) •Professional courtesy to request consent from opponent •Can be made ex parte – but courts reluctant to do so (NAB v Bond Brewing) •Purposes -Promote proper forensic and evidentiary disclosure →EG: discovery apps or request for further particulars -Procedural fairness →Ensure docs are accessible →Ensures all comply with the rules – equal opportunity -Efficiency – advances a just, quick and cheap resolution →Reduces hearing times by resolving small issues prior to hearing →Reduces legal costs →Addresses interim issues and forces parties to resolve (costs) -Provide direction in the carriage of the proceedings →Enables Judge to direct the course of litigation from early on →EG: narrow issues or apply for expedition or dates for filing/service -Address hardship or prejudice to the parties →EG: applications for summary judgment or striking out docs that are an abuse of process •NOTE: must be prepared to give usual undertaking as to damages arising from any interlocutory order (r 25.8) •NOTE: in NSW hearsay rule applies to interlocutory and main proceeding affidavits – unlike other jurisdictions where simply need to state where the hearsay originated KEY TERMS •Interlocutory application: Application made within proceedings for the purpose of: (a) preserving the status quo until the parties’ rights can be determined, or (b) for the purpose of dealing with the formalities which it is necessary to attend to before trial, such as particulars, discovery and interrogation. •Motion: where a party applies in open court for a favourable outcome (generally used for interlocutory matters). •Notice of motion: Advanced written notice that party intends moving for a particular order. •Security for costs: Order that a plaintiff (or counter-claiming defendant) provide security for payment of defendant’s (or counter-claimed plaintiff’s) costs should the plaintiff (or counter-claiming defendant) be unsuccessful in the action. TYPES OF INTERLOCUTORY APPLICATIONS •Adjournment/Vacation of hearing date (s 66 CPA; Practice Notes) -Court power to adjourn any aspect of proceedings to a specified day →Need leave (s 66 CPA) – accords with overriding purpose -Party responsible for adjournment likely ordered to pay costs incurred by other party because of the adjournment •Request for proper particulars (Part 15) -Most common •Strike out order (Part 12, 14) •Summary disposal/judgment (Part 13) •Default judgment (Part 16) -If no response after 28 days from service of initiating doc.
41•Amendment of pleadings (Part 19, CPA ss 64-65) -Need leave •Discovery and Inspection of documents (Part 21) -Need leave •Notices to produce and admit – see above •Interrogatories (Part 22) •Interim preservation orders (Part 25) -Also injunctions/marevas •Security for costs orders (Part 42) -Prevents unnecessary litigation and incurring of costs MOTIONS (Pt 18 UCPR) •All interlocutory apps brought by notice of motion (r 18.1) -Procedural path to an interlocutory application and order -Like a summons, there must be evidence in support (an affidavit) -NoM gives the other side notice of the proposed application – they can then argue why the interlocutory order should not be made •NOT required for the following interlocutory apps: -Form 36: default judgment claim for possession of land -Form 37: default judgment for detention of goods -Form 38: application for default judgment of liquidated claim -Form 39: application for default judgment – unliquidated claims for damages FORMAL REQUIREMENTS •NoM must be filed and served on each person to be affected by the proposed order (r 18.2) -Standard for service is three days before the NoM is set for hearing, unless court orders otherwise (r 18.4) •Contents of notice of motion – must (r 18.3): -Specify the date, time & place where it will be heard -Specify the orders sought -Identify person by whom the order is sought, their name and role in the proceedings, each person affected by the order and state that person’s address for service •NoM must be personally served on persons who have not entered appearance (r 18.5) -Identify address and personally serve them, and to distinguish from other parties who you can serve on – lawyers via fax, dx etc -Otherwise – just emailed to existing parties (ordinary service) •NoM should include all interlocutory apps so can be heard at one hearing (r 18.6(1)) -This includes applications brought by parties on the hearing day (r 18.6(2)) -Party may apply for adjournment (r 18.6(3)) •Motion may be dealt with in party's absence if properly served and they fail to appear (r 18.7) [ex-parte app – often for Mareva or Anton Piller order] -When dealing with matters ex parte, level of obligation/candour increases and must disclose facts which would be relevant and raised by opposing party •Court may also give directions as to the future conduct of proceedings at the hearing of the NoM (eg. directions for filing of evidence) (r 18.9) INTERLOCUTORY APPLICATION PROCEDURE 1) Draft notice of motion a. Comply with formal requirements (r 18.3 – see above – also note PNs) 2) File a notice of motion (r 18.3 UCPR; Form 20) 3) Serve notice of motion (see above for personal or ordinary) 4) Draft affidavit in support of orders which must: (Vaughan v Dawson) a. Outline matters which the Notice of Motion relies on b. Why you seek the orders in the Notice of Motion 5) Hearing – court may make orders it deems necessary (see above – court’s considerations depend on the interlocutory order sought) a. Can also be directions relating to interlocutory processes (r 18.9) SEEKING EXPEDITION •Governed by SC PN EQ 8•6 factors to consider (Greetings Oxford Hotel v Oxford Square; Vaughan v Dawson): 1) Is this the appropriate Court for the litigation, in particular:
42a. does litigation fall into the work normally done by this Court; and b. is there a sufficient nexus with NSW 2) Is there a special factor involved which warrants expedition - usually: a. loss of witnesses if the case is not fixed at an early date; b. matters of public importance; (witness might die or go overseas) c. subject matter of the litigation will be lost if not heard quickly; d. litigation to date has been delayed through no fault of applicant; e. applicant is suffering hardship not caused through his own fault; f. that there is self-induced hardship (including an upcoming hearing date in another court); g. the nature of the case h. that there are large sums of money involved. 3) Have the parties proceeded up to the date of the hearing of the motion for expedition with due speed? 4) Are the parties willing if expedition is granted to do all in their power to abridge the hearing time (e.g. making admissions, limiting xx) 5) Any application for expedition must be judged in the light of the number of other cases of equal or higher priority that also seek expedition 6) Any “right” to expedition is a right to have the case fixed on one occasion -If, after a date has been fixed, it must be vacated, it is difficult to justify again expediting proceedings (Ron Hodgson v Wewoka) INJUNCTIONS •Power derived from s 66(4) SC Act and r 25.2(1)(c) UCPR – orders NOT directions •Can be either: -Prohibitory – stopping someone from doing something -Mandatory – making them do something -Interim – either P or M, but for a short period of time →As opposed to final/perpetual which determines rights •Common injunctive orders: -Orders for the preservation of property (r 25.3) -Orders for disposal of perishable or similar property (r 25.4) -Orders for interim distribution of property or income surplus to the subject matter of the proceedings (r 25.5-6) -Orders for the payment of shares in a fund before the ascertainment of all persons interested (r 25.7) KEY TERMS •Injunction: a court order of an equitable nature requiring a person to do, or refrain from doing, a particular action •Mandatory injunction: order requiring party to act •Prohibitory injunction: order requiring party to refrain from acting •Interim injunction: order in force for a short period of time •Final or perpetual injunction:order finally determines rights of parties •Mareva order: aspecial type of interlocutory order restraining the defendant from dealing with the whole or part of his or her assets pending the outcome of proceedings, also referred to as an ‘asset preservation order (note: not an injunction) •Anton Piller order: an order which compels the defendant to allow the plaintiff or its agents to inspect the property and premises of the defendant, and allow for the search, preservation and seizure of documents and other evidence APPLICATION PROCESS •Apply to court by NoM (w/ notice [inter partes] or without notice [ex parte]) -Defendant applicant – injunction must relate to P’s original claim or a x claim •Applicant must provide ‘usual undertaking as to damages’ (r 25.8) -If damages inadequate, court may order security to be given (Remm v Alco) •Applicant must satisfy two requirements (ABC v O’Neill; ABC v Lenah Game Meats): 1) Serious question to be tried -Must be a legal/equitable right to be determined at trial (Lenah) and probability that relief will be obtained by P -Stronger case, less focus on balance of convenience -NOTE: no clear method of determining this question – discretionary
432) Balance of convenience favours the order being made -Discretionary decision (Beecham v Bristol) - matters the court considers and weight it attaches to them is up to the court →EG: P suffer irreparable damage (Aristoc v Wenham) or damages inadequate remedy (Bulldogs) or impact on 3P (Patrick v MUA) •IF BEFORE commencement of proceedings must give court undertaking that P will commence proceedings within a specified time limit (r 25.2(1), 25.2(4)) •Onus on D to prove damage sustained by imposing injunction if they seek compensation arising from it (Air Express v Ansett) •NOTE: may appeal orders granting interlocutory injunctions (Samsung v Apple) -Appellate courts reluctant to interfere with injunctions – seen as highly discretionary – thus not usually appealed unless clear error of law (House) MAREVA/FREEZING ORDERS •Order preventing a D from disposing of assets, dealing with them or removing them from the jurisdiction to defeat any judgment P may obtain against them (r 25.11)-Can be against D or a 3P (r 25.14) -Where P is scared D or 3P is going to deal with money -Hard to obtain – court takes extreme care when making such orders -Penalties for breaches are harsh – contempt of court •Requirements (Mareva v International Bulkcarriers; Jackson v Sterling Industries; Cardile v LED Builders): 1) P must show court has jurisdiction 2) P must establish a prima facie cause of action against D 3) P must show and prove that there is a danger of D absconding or of assets being removed out of the jurisdiction or disposed of to avoid judgment debt -Cannot be not speculation, there needs to be very good evidence •Order will be limited to authorise D to meet normal business and living expenses (Hortico v Energy Equipment; PCW v Dixon) •Also ancillary freezing orders which co-exist with main order (r 25.12) •NOTE: not an injunction so injunction criteria do not have to be proven (Cardile v LED Builders; Davis v Turning Properties) – do NOT call mareva ‘injunction’ ANTON PILLER/SEARCH ORDERS (Pt 25, Div 3) •Orders compelling D to allow P or its agents to inspect/search the property and premises of the D to secure/preserve/seize evidence (r 25.9; NSWSC PN 13) •Requirements (r 25.20; Anton Piller v Manufacturing Processes): 1) Extremely strong prima facie case against the respondent (go to court with a statement of claim drafted, even though it has not been filed) 2) Damage, potential or actual, must be very serious for the applicant 3) Clear evidence that Ds have in their possession, relevant documents/things 4) Real possibility that they may destroy such material before an inter partes application can be made •NOTE: do not permit forced entry like search warrants, only force D to consent to entry – their refusal to comply may amount to contempt of court (Anton) -Orders do not have the legal force of warrants in allowing forcible entry – only orders against D in personam to permit inspection SECURITY FOR COSTS •Where D requires P to offer security to ensure they can pay costs of proceedings -Founded on court’s inherent jurisdiction(Shannon v ANZ; Rajski) and UCPR•PURPOSE= prevent abuse of process/unreasonable claims and protect Ds •Court orders P must provide security for D’s costs and stay proceedings until security is given where (r 42.21(1)): a. P is ordinarily resident outside Australia b. P’s address is not stated/misstated in their originating process, and there is reason to believe that the failure to state an address or the misstatement of the address was made with intention to deceive c. after commencement of the proceedings, P has changed his or her address, and there is reason to believe that the change was made by the plaintiff with a view to avoiding the consequences of the proceedings, or d. reason to believe P, a corporation, will be unable to pay Ds costs if ordered
44e. P is suing, not for their own benefit, but for benefit of another person and there is reason to believe P will be unable to pay D’s costs if ordered or f. there is reason to believe that the plaintiff has divested assets with the intention of avoiding the consequences of the proceedings •When exercising the discretion the court may have regard to (r 42.21(1A)): a. the prospects of success or merits of the proceedings, b. the genuineness of the proceedings, c. the impecuniosity (having little or no money) of the plaintiff, d. whether P’s impecuniosity is attributable to the D’s conduct REPRESENTATIVE PROCEEDINGS/CLASS ACTIONS •See Pt 10 CPA; UCPR 7.4•Enables the claims of many people against the same defendant to be determined in one suit (r 7.4 UCPR; Part 8, r 13 SC Rules) -Only heard in Supreme Court -Representative plaintiff sues on their own behalf and on behalf of the class •Requirements in s 157-174 CPA-7+ persons, each with standing to sue, similar circumstances or questions of law/fact giving rise to claim, does not matter if different relief is sought •These requirements must be identified in originating process (see s 161): -ALSO under SC PN 17 – specify the nature of the claims, group members, relief sought and common questions of law/fact that are said to arise •All parties are bound by the decision •Any group member of the class may opt out of rep proceedings (s 162 CPA) APPEALING INTERLOCUTORY DECISIONS •Statutory (s 101(2)(e) NSWSC Act) right of appeal for interlocutory decisions •BUT courts reluctant to overrule (Re Will of Gilbert; Brown v PM; Samsung v A) -Especially because most are discretionary decisions •No rigid or exhaustive criteria for appeal grounds (Brown v PM) but normally error of law (House v King) and require leave of court (s 101(2)(e) NSWSC Act) DISCHARGE AND VARIATION •May set aside or vary with both parties’ consent (Werner v Bailey Aluminium) •Courts may also set aside, vary or discharge orders under appeal (see above) •Considerations for discharge or variation include (Bird v McComb): -Must be exceptional circumstances such as the order being procured by fraud or non-disclosure or due to a mistake -Error or oversight in the drafting of the orders -New facts come into existence or are discovered -Must not be used as an alternative to appealing the order or an opportunity to reargue a case
45DISPOSING WITH PROCEEDINGS •Disposal rules seek to prevent unfairness to parties and prevent parties bringing the admin of justice into disrepute (Walton v Gardiner) •NOTE: Court can dispense with any rule requirements if it is appropriate in the circumstances of the case to do so (s 14 CPA) – some cases where court cannot KEY TERMS •Strike-out: refers to a situation where a Court cuts down, or “strikes out”, a party’s pleadings, either in whole or in part. The UCPR tightly controls the circumstances in which strike-out can occur – r. 14.28. •Summary disposal: an umbrella term describing a situation where the proceedings (as opposed to specific pleadings) are disposed of due to a range of reasons e.g. the plaintiff or defendant has no realistic prospect of success on the case that they wish to put forward or for a failure to comply with the court’s directions and orders. Tools here include default and summary judgements, summary dismissal and dismissal for want of due despatch. •Vexatious litigants: A vexatious litigant is someone who persistently begins legal actions but does not have sufficient grounds for doing so. Is subject to the Vexatious Proceedings Act (NSW) – an order under this act means a vexatious litigant can generally only commence proceeding with leave. STRIKE OUT •Court will strike out defective pleading and normally allow re-pleading according to specific time frame (Rocla Concrete; Gunns; Markisic) •Strike out powers may be exercised according to courts’ inherent jurisdiction to control the conduct of litigation, in addition to the rules below •Can strike out whole pleading OR parts of it (rr 14.28; 13.4)•Does not end proceedings – but can lead to default judgment, stay or dismissal GROUNDS FOR STRIKE OUT •Overarching ground: if pleadings do not state with sufficient clarity case the other side has to meet (Banque Commerciale v Akhil) – expanded by UCPRas below •No reasonable cause of action/defence disclosed in pleading (r 14.28(1)(a)) -Looks solely at the adequacy of the pleading – no evidence needed •Tendency to cause embarrassment, prejudice or delay in the proceedings (14.28(1)(b)) -E = where SoC is so unclear/unintelligible that D cannot put on a Def (Davy v Garrett; Shelton v NRMA; Meckiff v Simpson) •Abuse of the process of the court (14.28(1)(c)) -AoP is not limited to closed categories (Bastistatos) -Includes both the institution and conduct of proceedings -Onus of proving AoP is a ‘heavy one’ and only found in ‘exceptional circumstances’ (Ashby v Slipper) -Includes: →Delay – take too long to plead (diff from delay in proceedings) →Duplication of determined proceedings – re-litigation (res judicata, Anshun estoppel, issue estoppel) (Port of Melb v Anshun) →Proceedings brought for collateral purpose/ulterior motive (Spautz) →Proceedings are unjustifiably oppressive or bring admin of justice into disrepute (Rogers v The Queen) →Proceedings are manifestly hopeless (Collier v Lancer; Agar v Hyde), manifestly groundless or untenable (Dey; General Steel) •Frivolous or vexatious claims (r 13.4) -F or V = AoP, intended to harass/annoy, no reasonable grounds or for wrongful purpose (AG v Wenworth; Viavatenne; s 6 VP Act) •Originating process may also be set aside for technical reasons such as improper service or that court has no jurisdiction (see r 12.11) •If document is scandalous, frivolous, vexatious, irrelevant, oppressive (r 4.15) •Failure to comply with directions (see s 61(3) CPA) •NOTE: Court can receive evidence on an application under r 14.28(1)(r 14.28(2)) -Evidence often necessary to show why a claim is groundless etc. •NOTE: court will not rewrite a pleading to cure it (Turner v Bulletin Newspaper)
46DIFFICULTY OF OBTAINING A STRIKE OUT ORDER•Courts very cautious to exercise such powers and only do so in the case of clearly defective pleadings (General Steel) -Pleadings must be ‘absolutely groundless’ (Metro Bank v Pooley) or ‘obviously unsustainable’ (AG of Duchy of Lancaster v London Railway) -Unlikely if the case has merit (Phornpisutikul v Mileto) •Very, very difficult order to obtain – courts are reluctant -Modern approach – case management techniques and pre-trial directions help cure minor defects in pleadings (Barclay Mowlem v Dampier Port per Martin CJ) -Pedantic approach to compliance should not be pursued (ACCC v Craftmatic) SUMMARY DISPOSAL (Pt 13) •AKA summary judgment and summary dismissal •Final judicial determination without court making a legal ruling (r 13.1(1)) -Order that proceedings be dismissed – as opposed to simply striking out -Can be made in relation to all or part of a claim (r 13.1(1)) and include order for damages to be paid (r 13.1(2)) -Can be awarded for P (eg. no defence or no appearance) OR D (eg. abuse of process, no reasonable prospects) •Does not prevent P from bringing fresh proceedings (s 91 CPA) •NOTE: disposal powers arise from Pt 13 and inherent jurisdiction GROUNDS FOR SUMMARY JUDGMENT•Statutory grounds where proceedings are: -13.4 (1)(a): frivolous or vexatious -13.4 (1)(b): no reasonable cause of action is disclosed (see below) -13.4 (1)(c): an abuse of process (see below) -12.7: failure to prosecute proceedings with due despatch -13.6: where the P fails to appear at the hearing -61(3)(a) and (c) CPA: failure to comply with directions -EXTENDED NSW by s 56: where P’s case is proven to have no reasonable prospects of success (McDonald v Grech; Bott v Carter) •No reasonable Cause of Action in NSW = “no real question to be tried” (General Steel; Dey) -Hard to prove – must be no question of fact or law to be determined →NOTE: not a question of whether question has been pleaded, but whether there is one at all – otherwise just order re-pleading -VIC/FCA diff – “no real prospects of success” (Spencer v Cth; s 31A FCA) →Lower threshold than current NSW test – there may be a ‘question’ but need to prove there is little chance of it being ‘successfully’ answered •Abuse of process (see Batistatos v RTA): -See above -NOTE: largely mirrors the statutory grounds above →Test of objective intention in conducting/commencing proceedings, not subjective intention (Spautz) •Powers of summary dismissal are to be exercised with exceptional caution (Spencer v Cth; O’Brien v Bank of WA) •NOTE: often ordered where non-compliance with self-executing/springing orders -Where court orders a step to be taken within a specific time and if not, a specified penalty automatically arises (eg. judgment for other party) -AKA guillotine or peremptory orders -May seek extension of time (r 1.12) or appeal the order if it is affected by error or causes injustice (Freeman v Rabinov) PROCESS •Make an application under r 13.1 which is supported by affidavit showing the evidence as to why summary judgment should be ordered (IE. identifying grounds) •Affidavit must not simply show an opinion but must include evidence to support the facts claimed to justify the summary judgment (Cosmos v Sue Bidwell) SETTING ASIDE •Summary judgment can be set aside where irregularly obtained (Browning v ANZ) -EG: judgments signed too soon (Anlaby v Praetorius) or for too much in damages (Hughes v Justin)
47DEFAULT JUDGMENTS (Pt 16 UCPR) •NOTE: only awarded to P -Form of statutory summary judgment – only where D fails to appear/file -Encourages D to file an appearance/defence within 28 days (r 14.3) •Only applies to proceedings commenced by SoC (r 16.1)•Effective when (r 16.2): -D fails to file a defence within time; or -Fails to file affidavit verifying the defence; or -Defence is struck out •Procedure (r 16.3) -File Notice of Motion for default judgment -NoM may be dealt with in absence of the parties and without it being served on D -Judgment given and damages may be ordered •Enforcement processes may need to be invoked to enforce the default judgment •Often occurs quickly where there can be liquidated sum (see r 16.6) -Also can occur for unliquidated sum with leave of court (see r 16.7) •NOTE: may apply by notice of motion to have a default judgment set aside, with a supporting affidavit addressing delay for not filing defence, showing the defence has merit and attaching the defence (r 36.16(2); Borowiak v Hobbs) VEXATIOUS LITIGANTS •Vexatious proceedings include (s 6 Vexatious Proceedings Act): (a) proceedings that are an abuse of the process of a court or tribunal, and (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and (This limb is gathered OBJECTIVELY)(c) proceedings instituted or pursued without reasonable ground, and(d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose •Declared vexatious if frequently instituted or conducted vexatious proceedings in Australia (s 8(1)(a)) -Frequently is a very low threshold (Viviattene) -Proceedings include interlocutory proceedings (Mahmoud) •Vexatious litigants are submitted on a registrar •Must specify each of the proceedings which are vexatious and explain why they are vexatious to the court (Viviattene) •Orders must be very specific – proportionate to need to restrain vexatious proceedings in each case (Potier) -Must be limited in relation to potential litigants, time and jurisdiction (Potier) •Covers any AUS court or tribunal •Orders can be made on application of (s 8(4) VP Act): -AG -Sol G -Registrar of court/tribunal -Court (on its own motion) -Person against whom such proceedings are brought or -Person with ‘sufficient interest’ who attains the court’s leave
48COSTS •AKA legal costs •Actual amount a party is charged or may be charged by a law practice for the provision of legal services (s 6 LPUL) -Includes barrister fees and other disbursements – NOT interest (s 6 LPUL) -NOTE: distinct from any expenditure or financial loss incurred by the party relating to the factual matters giving rise to the substantive causes of action in the litigation •Costs are only payable pursuant to a court order (s 98(2) CPA) or by parties’ consent or agreement •Operate as a means of managing litigation and encouraging settlement -Push parties to conduct proceedings justly, quickly and cheaply -Discourage vexatious or inefficient litigation →Costs rules seek to reward generous offers →Make litigants place realistic values on their cases rather than pretending they are worth more than they are →Parties who fail to settle according to reasonable offers will suffer adverse costs consequences àBUT be careful not to make offers too early – may lack sufficient info to make a proper/desirable offer for your client -Costs gap (diff b/w costs and what is recoverable) deters litigation →Normally only recover 60% costs unless indemnity costs awarded KEY TERMS •Costs:Also referred to as ‘legal costs’. Actual amounts party is charged or may be charged for legal services provided by a law practice related to the litigation (including barrister fees and other disbursements). See s 3 of the Civil Procedure Act 2005 (NSW). Note: costs are distinct to any expenditure or financial loss incurred by the party relating to the factual matters giving rise to the substantive causes of action the basis of the litigation. •Settlement-‘Without prejudice’ offer: Communication offering to settlement in course of settlement negotiations labelled ‘without prejudice’ and is inadmissible as evidence in proceedings. -‘Calderbank’ letter:Formal offer to settle with a warning that offer will be disclosed to court in the context of question of costs. -Offer of compromise: Offer to settle made by A to B. B does not accept offer and litigation continues. If B subsequently receives a less favourable judgment than what they would have received under A’s offer, B is usually penalised by adverse costs awards. •Different types of costs awards-Ordinary basis:Costs assessed pursuant to ss 74-76of the Legal Profession Uniform Law Application Act NSW (2014)– ‘fair and reasonable amount of costs for the work concerned’. Normally considerably less than expenses actually incurred. Also referred to as ‘standard party and party’. -Indemnity basis: Ordered pursuant to s 98(1)(c) CPA. More generous than ordinary basis. Paying party must prove costs are unreasonable and typically courts allow all costs, save those unreasonably incurred or of an unreasonable amount. •Additional costs orders in multi-party litigation-Bullock order: P ordered to pay costs of successful Ds, with unsuccessful D ordered to indemnify the P. Named after orders in Bullock v London & General Omnibus Co [1907]1 KB 264 -Sanderson order: Order that the unsuccessful Ds (1) pay the P’s costs (2) that they also pay the costs of the successful Ds. Named after orders made in Sanderson v Blyth Theatre Co [1903]2 KB 533. OFFERS TO SETTLE •Many types of offers that may be given – each has their own costs consequences -BUT a party is never entitled to costs arising from an offer unless they were able to fulfil their offer at the relevant time (r 42.17) •No time limit in NSW as to when offers can be made •NOTE: offer correspondence is presumed to be ‘without prejudice’
49OFFERS BEFORE COMMENCING AN ACTION •No provision to bind parties to make offers before commencing proceedings in NSW – although in other Australian jurisdictions there is •BUT some statute requires formal offers to be made before commencement of proceedings (e.g. Defamation Act (NSW) ss 12-20) •AND no limitation on making offer before action – e.g. calderbank may be made before action commences and considered in determining costs (Ofria v Cameron) WITHOUT PREJUDICE OFFER •A communication offering settlement during settlement negotiations labelled ‘without prejudice’ -Inadmissible as evidence in proceedings -Details of offers are to only be communicated after the verdict and for determining costs •Includes both calderbanks and Offer of Compromise (r 20.30) PAYMENT INTO COURT AS AN OFFER •Historically, used to be able to pay into court to make a settlement offer -Where D made a payment into court and P could accept •BUT now rarely used in NSW -However, r 42.22 contemplates that a court may consider the fact and amount of a payment into court when exercising its costs discretion →BUT this rule makes no comment as to when/how such offers could be made/accepted -Not desirable because payment into court requires P to be served with notice – may as well just send an offer of compromise CALDERBANK OFFERS/LETTERS •Common law method of settlement/offer •A formal settlement offer (stipulating a certain sum) combined with warning that the offer would be disclosed to court after verdict for costs purposes (Messiter v Hutchinson; Baulderstone Hornibrook; Miwa v Siantan) -Warning’ makes it different from a basic ‘without prejudice’ -May be in writing or oral →If oral, evidentiary issues may arise and less weight may be given to the offer in the circumstances of the case (Gilsan v Optus) •Can also involve payment into court (Messiter v Hutchison) •Coexists with the legislative settlement option of Offer of Compromise (Baulderstone) DIFFERENCES FROM OFFER OF COMPROMISE •Judgment may be formally entered when an OoC is accepted (see rr 20.27(3) also rr 20.26(2) and (3)) - not for calderbank •More flexible – governed by CL not statute like OoC -May be inclusive of costs, unlike an OoC (Elite Protective Personnel v Salmon; Monie v Cth) – including from interlocutory proceedings •Shorter period of time for acceptance of the offer may be considered reasonable (Red Engine Group v Hotel Agencies) – whereas OoC usually more (see below) -EG: often used mid-trial •Calderbank leaves costs to court’s discretion – whereas OoC provides more certain consequence as to costs -Refusal of a calderbank does not enable a party to be automatically be awarded indemnity costs – it must be an unreasonable rejection (see below) -Refusal of an OoC may give rise to indemnity costs regardless of the reasonability of the rejection – safer, as the court has less discretion •NOTE: dispute in case law as to whether calderbanks create a presumption in favour of indemnity costs (see Gordian Runoff NSWSC; Pirotta v Citibank) •NOTE: defective OoC (does not comply with rules) may still be regarded as amounting to a Calderbank offer (Kain v Mobbs; Elite Personnel Pty Ltd v Salmon; SMEC Testing Services v Campbelltown City Council) COSTS CONSEQUENCES •Court may have regard to calderbank letter, in addition to other relevant circumstances, when exercising its costs discretion (Messiter v Hutchison)
50•Court will determine costs implications according to two questions (Miwa v Siantan) 1) Was the offer in the calderbank a genuine offer? -Must entail a “real and genuine element of compromise” (Anderson v Tynan; Miwa v Siantan) 2) Was it unreasonable for offeree not to accept it? -Reasonableness assessed at the time offer was made (Regency Media) -Must consider stage of proceedings when it was made; time allowed for its consideration; extent of the compromise offered; prospects of success at the date and clarity of the offer (Hazeldene’s Chicken Farm v VIC Workcover) -Burden of proving unreasonableness lies with offeror (Miwa v Siantan) •NOTE: costs flow from date of offer and not from date of acceptance – so if D accepts offer after 13 days, must pay P’s costs for those 13 (Malliaros v Moralis) •NOTE: genuineness and reasonability will be influenced by circumstances (e.g. Maitland Hospital v Fisher – maid’s offer of $206k was real and genuine even though judgment was $200k - because $6k was large amount of money for her) OFFERS OF COMPROMISE (Pt 20, Div 4 UCPR; s 73 CPA) REQUIREMENTS •Like for CL offers, OoC must involve “a real and genuine element of compromise” to be valid under UCPR(The Anderson Group v Tynan; Barakat v Bazdarova) -Must state that the offer is “made in accordance with r 20.26” – not generally “made in accordance with the rules” (Kain v Mobbs) •OoC “inclusive of costs” are invalid (r 20.26(2)(c)) - diff from calderbank TIMING •If made more than 2 months or more before trial, must be open for acceptance for 28 days (r 20.26(7)) •If made less than 2 months, must be open for such time as is reasonable in the circumstances (r 20.26(7)(b)) •Cannot be withdrawn during either period unless court orders or the offer is replaced by a more favourable offer (r 20.26(1)) ACCEPTANCE •Accepted by written notice served on offeror or their solicitor (r 20.27(1)) -Can only withdraw acceptance in exceptional circumstances (r 20.28) •After acceptance, any party to the compromise may apply for judgment to be entered accordingly (r 20.27(3)) •If disputed – court may determine a dispute as to whether and on what terms proceedings have been compromised (s 73(1)(a) CPA) and make orders to give effect to this compromise (s 73(1)(b)) •Failure to comply after acceptance: -If P fails to comply, D may elect for judgment on terms of offer and dismissal of proceedings (r 20.29(1)) -If D fails to comply, P may elect for judgment on terms of offer and have the Defence struck out (r 20.29(2)) COST CONSEQUENCES •Where offer of compromise makes no provision as to costs: -Offer made proposing judgment for P and accepted by D and is silent on costs, D must pay P’s ordinary costs incurred up to time of offer (r 42.13A(2)) -Offer made proposing judgment for D and accepted by P and is silent on costs, P must pay D’s ordinary costs incurred up to time of offer (r 42.13A(3))
51•Court has discretion to depart from presumptions created by the rules because of use of “unless the court orders otherwise” in (rr 42.14; 42.15) •Exceptional circumstances are generally required to justify a departure from the above rules (Morgan v Johnson; Amaca v Mathwin; Macquarie Radio v Den) OTHER RULES •Proceedings involving disabled party can only be compromised with court’s approval (s 76 CPA) •Proceedings involving multiple parties can be comprised between any of them – except where jointly/severally liable and then must compromise with all •Offer to contribute to compromise may also be made and taken into account to determine costs consequences (rr 20.32; 42.18) •NOTE: terms of offers cannot be disclosed until all questions of liability and relief have been determined (r 20.30(3)(c)) – some exceptions in r 20.30(3)) •NOTE: where OoC offers something other than a monetary claim (I.E. specific performance), it often makes it difficult to determine who wins for the purposes of the presumptions in rr 42.14/15/15ABASES UPON WHICH COSTS ARE REWARDED ORDINARY BASIS (Pt 7, Div 3 LPUL App Act; s 3 CPA) •AKA standard basis or party/party basis •Costs assessed in accordance with Division 3 of Part 7 of LPULApp Act (s 3 CPA) which stipulates that ordinary costs are those that are fair and reasonable in all the circumstances (172(1)) •In determining fair and reasonable, court may regard (s 172(1) LPUL) (a) level of skill, experience, specialisation and seniority of the lawyers concerned; and (b) level of complexity, novelty or difficulty of the issues involved, and extent to which the matter involved a matter of public interest; and (c) labour and responsibility involved; and (d) circumstances in acting on the matter, including (for example) any or all of the following – i. the urgency of the matter; ii. the time spent on the matter; iii. the time when business was transacted in the matter; iv. the place where business was transacted in the matter; v. the number and importance of any documents involved; and
52(e) quality of the work done; and (f) retainer and instructions (express or implied) given in the matter •Most conservative costs order INDEMNITY (s 98(1)(c) CPA; r 42.5) •All costs other than those unreasonably incurred or of an unreasonable amount (r 42.5(b); ss 98 and 99 CPA) -Not full amount of costs between solicitor/client but represents the majority of costs incurred (higher 70%) -Includes fees, charges, disbursements, expenses, remuneration in undertaking proceedings (e.g. Expert report obtained but not served) -Effectively a penalty order – punishes party for specific reason (see below) – must be good reason to grant -NOTE: for fiduciary, trustee, executor, administrator or legal rep of deceased estate, IC are all costs other than those incurred in breach of duty (r 42.5(a)) TRUSTEE BASIS •If a costs order is made against trustee, they can recover all of their costs from trust fund and pay them to other side -Never out of pocket – as opposed to parties who may only get a proportion even where indemnity costs are awarded •Fund will probably have professional indemnity insurance to cover trustee -Thus, may often then need time to pay costs to other side •BUT if trustee acts in breach of duty they may be required to pay costs on an indemnity basis (r 42.5(a)) COMMON FUND BASIS •Costs are paid out of a common fund used to finance litigation •Slightly more generous than ordinary costs but limited by the fact that costs were being paid out of a fund in which others were interested (e.g. estate) •NOTE: in NSW no longer have solicitor/client costs – only in VIC – these are costs charged by solicitor to client and are assessed according to the contract between them, not pursuant to court order •More generous than indemnity – included costs that would be regarded as unreasonable, if they were approved by the client under contract •NOTE: court may also order a maximum of costs that can be awarded against a person (r 42.4) – prevents unnecessary expenditure/incurring of costs COST ORDERS •Court has power to make orders as to costs – discretionary (s 98 CPA) WHEN COSTS ARE AWARDED? •Primary rule is that costs follow the event (r 42.1; Baulderstone Hornibrook) •Presumption that costs follow the event can be displaced (on an I/O basis) where there is evidence of disentitling conduct by the successful party (Oshlack) -Onus on losing party to displace presumption (Waterman v Gerling) -Disentitling conduct does not need to amount to misconduct, may be any conduct “calculated to occasion unnecessary expense” (Lollis v Loulatzis) -Includes situations (Tomanovic; Oshlack): →Where successful party effectively invited litigation (Ritter v Godfrey) →Where successful party unnecessarily protracted the proceedings →Where successful p succeeded on a point not argued before lower ct →Where successful party prosecuted the matter solely for the purpose of increasing the costs recoverable →Where successful party had obtained relief which the unsuccessful party had already offered in settlement of the dispute (same as offer) -NOTE: public interest does not itself prevent costs following event (Oshlack) WHAT TYPES OF COSTS ARE AWARDED? •No fixed rule or rationale about how costs are to be awarded •Ordinary costs usually where: -An offer is accepted – P entitled to costs on standard basis (r 42.13A) -Where costs follow the event and no reason to give indemnity
53-Failure to accept reasonable offer of compromise – see above (only up to certain date) •Indemnity costs when: -Proceedings brought in a way that are an abuse/misuse of process (Bollag v Attorney General; Baulderstone per Einstein J) -Where a party engaged in procedural delinquency OR unreasonably conducted litigation (Baulderstone per Einstein J) →E.G.: non-compliance, delay, contempt (Miletto – constant delay and failure to comply with service) -Failure to admit facts subsequently proven (r 42.8) -Failure to admit authenticity of documents subsequently proven (r 42.9) -Failure to accept reasonable offer of compromise – see above -NOTE: court more reluctant to award indemnity costs against unrep (Macedon Ranges Shire Council v Thompson) SPECIFIC COST ORDERS 1. Costs in the cause/costs deferred/costs reserved -Costs treated as part of the action as a whole -Not disposed of at the time the orders are made but at end of proceedings and on an identical basis -E.G.: interlocutory matter costs are reserved and are decided at a later date 2. Costs in any event -Costs determined at the time and this remains so whatever the result of the proceedings 3. No order as to costs -Each party pay their own costs (Re Hodgkinson) -In reality, it means there is no order because costs only payable via order 4. Costs of the day -Relates to the costs of a particular day and all work “reasonably connected” with the issues dealt with on that day (Re Hudson; ex parte Citicorp) 5. Costs of the action/costs of the proceeding -All costs – not only costs of the trial but of interlocutory actions too -E.G.: costs for preparing and obtaining an injunction before trial -CONTRAST to costs of the trial – which does not include interlocutory 6. Costs of and incidental to -Include not only costs which directly and necessarily arise from an action but also those which occur incidentally to the action 7. Costs thrown away -Costs incurred during a step that is rendered worthless -E.G.: default judgment being set aside borne by the applying D 8. Costs as assessed -Costs assessed according to the taxing/assessment rules (see below) 9. Costs of the appeal -Costs of and subsequent to notice of appeal BULLOCK AND SANDERSON ORDERS •Where more than one D •BULLOCK = (Bullock v London General Omnibus) P pays successful D’s costs, but unsuccessful D then indemnifies P for costs incurred in litigating against the successful Ds •SANDERSON (Sanderson v Blyth Theatre) = order that unsuccessful Ds immediately pay costs of P and successful Ds -Direct payment – contrast to bullock order which is indirect •Bullock AND Sanderson orders must only be made where: -It was reasonable and proper for the P to join the successful D (RTA v Dederer) →I.E. CANNOT be made unless the unsuccessful D does/says something that leads P to sue the successful D – P should not be reimbursed for their error or overcaution (Gould v Vaggelas) →E.G.: there was something in the conduct of the other, unsuccessful, defendant that makes it appropriate to exercise the discretion (Coombes v RTA)
54•NOTE: whether a Bullock/Sanderson is granted is really only critical for P where unsuccessful Ds are impecunious because: -Under Bullock, P will be out of pocket because they cannot be indemnified -Under Sanderson, both P and successful Ds will be out of pocket INTERLOCUTORY COSTS •Do not become payable until conclusion of matter (r 42.7(2)) AND dealt with in the same way as the general costs of the proceedings (r 42.7(1)) unless otherwise ordered by the court (r 42.7(1)) -Costs do not necessarily follow the event for interlocutory judgments – may be considered separately (see below) •Nature of an interlocutory application will determine costs -If an application is brought because there was some fault on the part of the person bringing the application then that party must bear its costs -However, if the application is being brought because of a fault of the other party then the person bringing the application will get interlocutory costs -If interlocutory app was brought due to no fault of either party then at the end of the complete process, the loser will pay the interlocutory costs ARBITRATION COSTS •If party applies for rehearing of an arbitration determination and receives no more favourable outcome then they must pay other’s costs of rehearing (r 2.12(2)) •BUT court still has discretion to depart from this in special circumstances (r 42.12(3)) PERSONAL COSTS ODERS/COSTS AGAINST LEGAL PRACTITIONERS •Awarded where costs have been incurred (s 99(1)): (a) by the serious neglect, serious incompetence or serious misconduct of a legal practitioner (see Treadwell v Hickey; Karwalay; Kendirjian v Ayoub) OR (b) improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible •E.G.: proceedings commenced without reasonable prospects of success (Lemoto; Degorgio v Dunn; s 62, Sch 2 Cl 4 LPUL App Act) •Also see SC PN General 5 – outlines circumstances of when costs orders might be made (e.g. Late amendment) and also procedural considerations for when a court makes a person costs order (e.g. Opportunity to give submissions on the issue) THIRD PARTY/NON-PARTY ORDERS •Costs orders can be made against 3P to litigation (Knight v FP Special Assets; McMillan Investment Holdings v North Coast) -Court will exercise its power to make a non-party costs order sparingly and with great restraint -Power derives from inherent jurisdiction and discretionary power in s 98APPORTIONED COSTS •Complex cases -Costs can be apportioned by issue/defendant -Costs can be given on different bases per issue (eg. ordinary or indemnity) →E.G.: Rosniak v GIO – ordinary costs but indemnity on one issue •Proportion is likely to only be an educated guess SELF REPRESENTED LITIGANTS •Self-reps cannot recover costs incurred through legal preparation of a matter – cannot allow self reps to profit from representing themselves (Cachia v Hanes) -BUT exception where litigant in person is a solicitor acting on their own behalf (Cachia; Guss v Veenhuizen) SECURITY FOR COSTS •see above (p 38) APPEAL COSTS •Separate, complex rules relating to appeal costs OTHER COSTS ORDERS UNDER UCPR •There are default orders to be made where: -Party amends without leave (r 42.6) – amending party must pay costs of and occasioned by the amendment
55-Disputes a fact that is subsequently admitted/proved (r 42.8) – failing party must pay, on indemnity basis, the costs occasioned by other party in proving the fact or preparing to prove it (r 42.8(2)) -Disputes authenticity of a document later proven (r 42.9) – failing party must pay, on indemnity basis, the costs occasioned by other party in proving the authenticity or preparing to prove it (r 42.9(2)) -Disobeys a judgment, rule, order or direction (r 42.10) – disobeying party must pay costs occasioned by the failure to obey -Proceedings are discontinued by P (r 42.19) – P must pay all costs incurred by D until notice of discontinuance is filed -Proceedings are dismissed →P must pay D’s costs of the proceedings to the extent to which they have been dismissed (r 42.20(1)) →If Def is struck out, D must pay P’s costs of proceedings in relation to those matters in respect of which Def has been struck out (r 42.20(2)) -Where person does not attend when required by subpoena or otherwise (r 42.27) court may order person in default to pay costs occasioned by default •Smyth Orders = at any stage of proceedings, court may order a party’s legal representative to serve on the party a notice specifying an estimate of (r 42.32): (a)(i) an estimate of the largest amount (inclusive of costs) for which judgment is likely to be given if the party is successful, and (a)(ii) an estimate of the largest amount (by way of costs) that the party may be ordered to pay if the party is unsuccessful OR (b)(i) an estimate of the best outcome that the party is likely to achieve if the party is successful AND (b)(ii) an estimate of the worst outcome that the party is likely to undergo if the party is unsuccessful •I.E. forcing legal rep to notify their client of the potential financial ramifications of the proceedings for the client – often used to attempt to get parties to settle, but legal reps generally would do this regardless – rare order DISPUTES AS TO COSTS •Where a dispute arises, costs will be assessed to determine their appropriateness •AKA costs assessment process •Assessors are independent from the court – around 60 currently in NSW •Application and criteria for assessment proscribed in LPUL ss 196-205 and LPUL App Act ss 66-80•Different rules for different types of costs and costs orders →E.G: where ordinary costs ordered, assessor must determine what is a fair and reasonable amount of costs for relevant work (s 76(1); s 172) •Decisions may be reviewed/appealed where an error of law or otherwise with court’s leave (s 205 LPUL)→If successfully appealed, court of appeal may exercise costs discretion afresh (McCusker v Rutter; Quirk) •NOTE: no scales of costs in NSW – just assessment
56FINALISING PROCEEDINGS BEFORE TRIAL •Applications made to the court to end the matter before trial (see above) including: -Strike out -Default judgment -Summary judgment/dismissal AFTER TRIAL •After trial, verdict will be entered and orders granted or denied (also may be costs) •Judgments and orders are unenforceable until entered (s 133 CPA) •Judgment and orders take effect at date given or made (r 36.4(1)(a)) OR if court orders that they not take effect until entered, on the date entered (r36.4(1)(b)) -BUT court can make orders that they take effect earlier (r 36.4(3)) JUDGMENTS•4 main categories of judgments: -Entitling successful parties to take possession of land (s 104 CPA) -Requiring the delivery of goods (s 105 CPA) -Mandatory or injunctive orders (inherent jurisdiction of NSWSC) -Requiring judgment debtor to pay money to the creditor (s 106 CPA) →Usually enforced using (s 106(1)): (a) a writ for the levy of property OR (b) a garnishee order OR (c) for Supreme Court or DC judgment, a charging order →Also using instalment order/receiver/sequestration etc (see below) -NOTE: equitable relief also available in judgments •Relevant parties: -Judgment debtor = legal entity owing money pursuant to court order -Judgment creditor = legal entity owed money pursuant to court order -Office of the Sheriff of NSW = conducts law enforcement, security and support activities to ensure the safe/successful operation of state courts →Enforce judgments, search premises and seize property/money/goods →Conduct auctions of seized and unclaimed goods →BUT powers are only enlivened pursuant to court order ENFORCING JUDGMENTS•Limitation period on enforcement of a judgment is 12 years from the date it becomes enforceable (s 17(1) Limitation Act 1969) •Full judgment debt amount must be paid within 28 days of judgment (s 101(3)) otherwise interest accrues on the judgment debt at ‘prescribed rate’ (s 101) •Procedure for enforcement determined by rules of the specific court (s 103 CPA) •Various methods of enforcing judgments are listed below WRITES OF EXECUTION •These are court orders addressed to the Sheriff authorising them to take action to enforce judgments •Different types of writs are stipulated in s 102 CPA – they include: 1) WRIT FOR THE LEVY (SEIZURE/SALE) OF PROPERTY•Allows a sheriff to satisfy a debt by (s 106(2)): -(a) seizing and selling goods of or to which the judgment debtor is or may be possessed or entitled to OR which the judgment debtor may, at law or in equity, assign or dispose of AND →BUT USED TO BE NOT clothing (s 106(3)(a)), bedroom/kitchen furniture (s 106(3)(b)) or tools of trade including vehicles, plant, equipment and reference books (s 106(3)(c)) IF they are used by the judgment debtor or any member of their family →AMENDED NOW s 106(3): The power conferred on the Sheriff by s 106(2)(a)may not be exercised in relation to any property referred to in s 116 (2)of the Bankruptcy Act 1966 of the Commonwealth. For that purpose, a reference
57in s 116 (2)of that Act to the property of the bankrupt is taken to be a reference to the goods of the judgment debtor. -(b) seizing money belonging to the judgment debtor AND -(c) seizing and realising cheques, bills of exchange, promissory notes, bonds, specialties or other securities for money belonging to the debtor AND -(d) entering into possession of, and selling land of or to which the judgment debtor is seized or entitled OR which the judgment debtor may, at law or in equity, assign or dispose of AND -(e) taking and selling choses in action or equitable interests in goods or land held by the judgment debtor 2) WRIT OF DELIVERY•Writ allowing enforcement of a judgment or order by the delivery of goods (s 105) 3) WRIT FOR THE POSSESSION OF LAND •Writ for enforcing a judgment or order by taking possession of land (s 104(1)) •Does not require goods to be removed from the land (s 104(2)) OTHER REQUIREMENTS OF WRITS AND THEIR ENFORCEMENT •Execution of writs must comply with the procedure specified in Part 39 UCPR-Division 1 for Enforcement of writs of execution generally →EG: r 39.6 stipulates order in which property is to be sold -Division 2 for Enforcement of writs against land →EG: rr 39.21 to 39.28 stipulates requirements for how a property sale under s 106(2)(d)is to be completed →Must first try to obtain satisfaction of the writ against the JD’s goods →Necessary steps to complete prior to sale of land under writ for levy of property (r 39.22) -Division 3 for Enforcement of writs against goods etc. →EG: r 39.29 allows sheriff to remove goods to a place where they believe goods will attain highest price or to a place of safe keeping •Writs of execution have effect for 12 months but may be renewed by a court (39.20) •Applications for any writ of execution to be ordered must be filed pursuant to a notice of motion and be supported by an affidavit complying with r 39.3•NOTE: writs are extremely important because they determine and control the power of sheriffs to enforce judgments (Clissold v Cratchley) -EG: if sheriff acts beyond powers then they may be liable at law (eg. for trespass for staying in property too long as in Watson v Murray) OTHER WAYS OF ENFORCING JUDGMENTS GARNISHEE ORDERS/ATTACHMENT OF DEBTS (also see ss 117-125 CPA) •Order made against a third party (the garnishee) who holds funds on behalf of judgment debtor OR owes the judgment debtor money (s 117) OR who pays the debtor wages or salary (s 119) -For s 117 there must be a judgment debt AND a debt owed to judgment debtor which is accruing/due, cannot be a future debt (Fellows v Thornton) -For s 119 there must be a payable wage or salary, which may include future earnings (s 119-122) →BUT garnishee must not reduce weekly income below $447.70 (s 122) •Must pay 14 days after service of garnishee order in relation to debts (s 118) or wages or salary (s 120) •Application made ex-parte through filing (r 39.34): -Notice of motion (Debts - Form 70); (Wages - Form 71) AND -Supporting affidavit stating the amount payable under the judgment, debt owed, garnishee debt (r 39.35) •Once garnishee is served, they can: -Pay the amount (s 123 CPA) OR -Choose not to appear and the debt will be levied/imposed to them (s 124 CPA) OR -Dispute it (r 39.40) INSTALMENT ORDERS •Order permitting a judgment debt to be paid in instalments (s 107(1); rr 37.1A, 37.2)
58-Usually where debtor provides evidence that they are unable to pay the judgment debt at present •Must provide means for living expenses and other liabilities to be paid •Attractive when unsure whether debt will be repaid BUT risk of defaulting on the instalments too CHARGING ORDERS•Allows a judgment creditor to obtain a charge (to the value of the judgment) over “security interests” (s 126(2)(a)) AND restrain the debtor from dealing with property otherwise than as directed by creditor (s 126(2)(b)) •Charging order takes effect when it is made (s 126(3)) and will freeze subject matter until an application is made to have orders set aside (r 36.16) -Creditor can enforce charge by selling securities and taking proceeds BUT can only sell if there is no application to set aside within 3 months (s 126(4)) •“Security interests” include (s 126(1) CPA): -(a) stock and shares in a public company -(b) money on deposit in a financial institution, being: →(i) money held in judgment debtor’s name and in their own right OR →(ii) money held in the name of some other person in trust for the judgment debtor -(c) any equitable interest in property •Unauthorised transfers of the subject matter by the debtor may give rise to liability for the judgment amount (s 127(1)) in addition to other orders (s 127(2)) such as contempt •Any attempts to transfer subject matter by debtor are invalid (s 128) •NOTE: charges obtain priority over unsecured creditors (Rainbow v Moorgate) BANKRUPTCY/WINDING UP•Process = serve bankruptcy notice, give 14 days to pay debt, if failure to pay then this constitutes an ‘act of bankruptcy’ and allows presentation of bankruptcy petition where a trustee is appointed to realise bankrupt’s assets and pay debts -Occurs under the Bankruptcy Act 1966 (Cth)•BUT then subject to a dispute with their other creditors •Winding up is similar - a statutory version of bankruptcy for insolvent corporations under s 570 Corps ActAPPOINTMENT OF RECEIVERS •Receivers may be appointed by a court under s 67 NSWSC Act -Will sell property and receive income to pay judgment debt (r 40.2(1)(a))-Made via application of judgment creditor •Strategy of last resort -Mainly because receivers get paid substantially (Morgan v Hart) SEQUESTRATION AND CONTEMPT •Seek to punish recalcitrant/uncooperative party – where there is a failure to comply with orders •Contempt involves non-complying party being fined or imprisoned (Pt 55 SC Rules) -Occurs after there is a hearing into contempt allegations and these allegations are proven -Must make application setting out details of alleged contempt (NSWSC Rules Pt 55 r 7; UCPR r 11.02) -Warrant may be issued for arrest if person is at risk of fleeing jurisdiction (Pt 55 r 10) •Sequestration involves non-complying party being separated (sequestrated) from OR excluded from accessing their property (rr 40.3, 40.7) -Writ of sequestration must only be issued after court grants leave (40.3(1)) →Must be convinced beyond reasonable doubt that party is in contempt -ONLY involves possession of property – cannot sell it →Very rare – because will not remedy a debt as cannot sell -EG: where politician had right to use a hall but was denied – sequestration orders made to allow him to use hall for a promotion (Webster v Southwark Borough Council)
59•S or C proceedings cannot be commenced unless non-complying party has been personally served with the judgment (40.7(1)) and a notice that they may be subject to imprisonment or sequestration if they fail to comply (40.7(2)) -Ensures procedural fairness and gives recalcitrant time to remedy their failure to comply SUBSTITUTED SPECIFIC PERFORMANCE •Where a person fails to do something required by a judgment, the court may direct that the act be done by a person appointed by the court at the cost and expense of the refusing party (r 40.8) -May be exercised in addition to contempt CONDITIONAL JUDGMENTS •Sometimes person may only be entitled to benefit of a judgment until they satisfy a condition OR the court dispenses with the condition (r 39.50) INTERSTATE JUDGMENTS •Enforced under Pt 6 Service and Execution of Process Act 1992 (Cth)-See s 105 SEP Act – must lodge copy of judgment with the new court, court must register the judgment and then it can be enforced INTERNATIONAL JUDGMENT ENFORCEABILITY •International judgments are enforced under Foreign Judgments Act 1991 (Cth) and Foreign Judgments Regulations 1992 (Cth)-Enforceable on the basis of reciprocity – courts only enforce judgments of countries where AUS judgments can be enforced too -May set aside registrations of judgments under s 7•AUS judgments can be enforced overseas in countries that are reciprocal -Reciprocal countries are listed in Pt 2 of the ActPROBLEMS IN ENFORCING •Parties doubting whether a judgment will be satisfied should protect their interests by initiating enforcement procedures ASAP •May also pre-emptively enforce by obtaining orders such as mareva orders or injunctions •Can also legally obtain information about judgment debtor’s assets -Through informal procedures such as title searches OR -Formal procedures under s 108 CPA whereby court may order for the oral examination of debtor on material questions (s 108(1)) or for them to produce any doc/thing in their possession relating to a material question (s 108(2)) →Material questions are defined by s 108(5) - for example, questions relating to the debtors’ ability to satisfy their debts →Process of examination is also prescribed in 38.1 to 38.7 UCPR→May include cross-examination STAYS STAYS OF PROCEEDINGS •Court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day (s 67 CPA + inherent jurisdiction) •Often where: -An appeal is pending (see more below) -Proceedings are an abuse of process (NSW v A Plaintiff) -Where summary judgment is only for part of a claim -Where facts arise after judgment that would justify a different judgment -Counterclaims are yet to be determined •Stays may be granted on terms (e.g. provide security) (Rosengrens v Safe Desposit) •Stays can be permanent or for a limited period -Not best remedy as it does not prevent re-initiation of proceedings (eg. where there is an abuse of process) STAYS OF JUDGMENT ENFORCEMENT•Stays of judgments are different from stays of proceedings •Court has discretion to give directions as to the enforcement of its judgments and orders (s 135(1) CPA) including (s 135(2) CPA): -(a) an order authorising the Sheriff to enter premises to take possession of goods under a writ of execution,
60-(b) order prohibiting the Sheriff from taking any further action on a writ, -(c) order prohibiting any other person from taking any further action, either permanently or until a specified day, to enforce a judgment or order -(d) an order requiring the Registrar-General to cancel any recording of a writ for the levy of property PROVING STAY•Applicant bears onus of establishing a reason for a stay (Alexander v Cambridge Credit; Klinker Knitting Mills) -Discretionary – balance of conv. favours it, in interests of justice, consider rights of parties or where appeal, prove appeal has reasonable prospects -EG: granted where necessary to preserve subject matter and prevent irreparable loss (Jennings Construction v Burgundy) APPEALS GENERALLY •Appeal is an application to have a court order set aside or varied by an appellate court (CBA v Bank of NSW) -The appeal process varies according to statute •Right of appeal is always governed by legislation (Coal and Allied v AIRC) -No CL right to appeal (Lacey v AG of QLD) -Scope of appeal governed by legislation – e.g. Supreme Court Act 1970 (NSW) •Generally 3 types: -Strict appeal →Court confines its consideration to whether judgment was correct when given →Only consider facts/law at time of decision – no new evidence -De novo appeal →Re-recording of the evidence →Totally new proceedings from the beginning →Very rare -Rehearing →Most common (see e.g. s 75A(5) NSWSC Act) →Determines rights/obligations of parties at date of the rehearing but according to the evidence before trial judge →Limited power to admit new evidence →Conducted according to law at date of rehearing (Fox v Percy) →Appellant must demonstrate that having regard to the evidence, the orders being appealed involve a legal/factual/discretionary error (Kostas v HIA Insurance) •Leave may often be required to appeal -Leave operates as a filter for appeal courts (Coulter v The Queen) •NOTE: new points of law cannot be raised on appeal unless in interests of justice (Water Board v Moustakas) – see also estoppel above •NOTE: limited amount of fresh evidence may be presented on appeal before NSWCA (s 75A(7)-(9) NSWSC Act) but no new evidence can be admitted before HCA (Coal and Allied v AIRC) APPEALS IN NSW •In NSW, governed by s 42-46B of Supreme Court Act 1970 (NSW)-11 members of Court of Appeal -3 people will sit and hear, so there is no hung decision -Some matters will be heard by 5 because it’s a long-standing decision or of public significance -Sometimes 2 – usual that they will reach an agreement -Single judges can hear certain interlocutory appeals – like a costs order •Two types of appeal -From Supreme Court to Court of Appeal →Appeal right determined by s 101 SC Act→Procedure per Pt 51 UCPR-From outside Supreme Court to NSWSC trial division (s 48 SC Act) →Appeal right determined by other courts’ statutes (e.g. Local Courts Act) →Procedure per Pt 50 UCPR
61•Appeals can be made in three circumstances: -As of right – e.g. appeal lies of right from a decision of a Division of the Supreme Court s 101(1)-With leave – e.g. against a cost order, against an interlocutory order s 101(2)-On a limited basis •Appeals are to be conducted by way of rehearing (s 75A(5)) -Court may receive further evidence (s 75A(7)) -BUT where the appeal is from a judgment after a trial or hearing on the merits, Court may only receive further evidence on special grounds (s 75A(8)) →BUT no limit to admitting evidence concerning matters occurring after the trial or hearing (s 75A(9)) •Grounds: -Error of Law: Misdirection, non-direction or other which would have changed outcome of trial (Norbis v Norbis) -Error of Fact: Improper admission or rejection of evidence – conclusion was ‘clearly wrong’ (House v The Queen; Russo v Russo) -Miscarriage: Of a court’s discretion -NOTE: not simply enough to alleged that primary judge erred in law or fact, but the grounds must identify the respects in which the errors occurred -Other cases stating must be error: Fox v Percy (2003); House v R(1936)NSWSC APPEALS •Part 50applies to any appeal other than (r 50.1): -(a) an appeal assigned to the Court of Appeal -(b) an appeal to SC under Part 5 of the Crimes (Appeal and Review) Act 2001-(c) an appeal to which the provisions of Part 80A rule 32 (1) of the SC Rules 1970 or rule 14.1 of the SC (Corporations) Rules 1999apply •NOTE: must ensure all persons affected by relief sought or involved in appealed decision are joined as appeal respondents (r 50.5) •As below, relevant appeal documents include: -Summons seeking leave to appeal -Summons commencing an appeal -Cross-summons seeking leave to appeal -Cross-summons -Notice of contention SUBJECT MATTER AND RIGHT TO APPEAL•Determined by other courts’ statutes (e.g. s 39/40 Local Courts Act 2007 and s 127 District Court Act 1973) •NOTE: not required to know these SUMMONS SEEKING LEAVE TO APPEAL•Summons seeking leave to appeal must be filed within 28 days of material date [date of decision] (r 50.12(1)(a)) or within such time as the first instance judge allows within 28 days of the material date (r 50.12(1)(b)) or within such time as the Supreme Court allows (r 50.12(1)(c)) •Must contain statement as to whether plaintiff seeks to appeal the whole or part of a decision of lower court (r 50.12(3)(a)), what decision it seeks in place (r 50.12(3)(b)), the nature of the case (r 50.12(4)(a)), reasons why leave should be given (r 50.12(4)(b)) and if applicable, reasons for extension of time to seek leave (r 50.12(4)(c)) SUMMONS COMMENCING AN APPEAL•Must be filed within 28 days of material date [date of decision] (r 50.3(1)(a)) or within such time as the first instance judge allows within 28 days of material (r 50.3(1)(b)) or within such time as the Supreme Court allows (r 50.3(1)(c)) •Must state whether plaintiff seeks to appeal the whole or part of a decision of lower court (r 50.4(1)(a)), what decision it seeks in place (r 50.4(1)(b)) and briefly the grounds of appeal (r 50.4(2)) •Must also file copy of summons with the trial court (r 50.6) CROSS-SUMMONS SEEKING LEAVE TO APPEAL •Cross summons seeking leave to appeal must be filed within 14 days after service of summons commencing appeal or seeking leave to appeal (r 50.13(1)(a)) or within such time as the Supreme Court allows (r 50.13(1)(b))
62•Must contain statement as to whether plaintiff seeks to appeal the whole or part of a decision of lower court (r 50.13(3)(a)), what decision it seeks in place (r 50.13(3)(b)), the nature of the case (r 50.13(4)(a)), reasons why leave should be given (r 50.13(4)(b))and if applicable, reasons for extension of time to seek leave (r 50.13(4)(c)) CROSS-SUMMONS •Where D seeks to appeal the whole or part of a decision of lower ct (r 50.10(1)) •Must file within 28 days of being served the summons (r 50.10(2)(a)) or within such time as the first instance judge allows within 28 days of service of summons (r 50.10(2)(b)) or within such time as the Supreme Court allows (r 50.10(2)(c)) NOTICE OF CONTENTION •Where defendant wishes to contend that the decision of the court below should be affirmed on grounds other than those relied on by the court below, but does not seek a discharge or variation of any part of that decision (r 50.11(1)) must file and serve on parties a notice of contention briefly stating these grounds (r 50.11(2)) -Does not need to file a cross appeal (r 50.11(2)) •Notice must be filed and served within 14 days of being served the summons commencing appeal (r 50.11(3)(a)) or such further time as court allows (r 50.11(3)(b)) PROCEDURE •Emulates s 75A(see as above) – e.g. it is a rehearing and limited rights to admit new evidence (r 50.16) •Otherwise, no further guidance on how an appeal is to be conducted (I.E. No appeal book requirements or submission requirements) NSWSCA APPEALS •Part 51rules apply to any proceedings (whether or not appeal proceedings) that are assigned to the Court of Appeal (r 51.1(1)) •As below, relevant appeal documents include: -Notice of intention to appeal -Summons seeking leave to appeal -Notice of appeal -Cross-summons seeking leave to cross appeal -Notice of cross appeal -Notice of contention •NOTE: must ensure all persons affected by relief sought or involved in appealed decision are joined as appeal respondents (r 51.4) SUBJECT MATTER AND RIGHT TO APPEAL•Appeals can be brought without leave to the NSWCA from (s 101 NSWSC Act): -(a) any judgment or order of the Court in a Division, and -(b) without limiting the generality of paragraph (a): →any opinion, decision, direction or determination of the Court in a Division on a stated case, →(ii) any exercise of a power to which section 24 applies, and →(iii) any determination of the Court in a Division in proceedings remitted under ss (4) of s 51 •Leave is necessary for the subject matter listed in s 101(2), including for example: -(e) an interlocutory judgment or order in proceedings in the Court -(n) a judgment or order of the Court for the winding up of a corporation -(q) a judgment or order in proceedings of the Court with respect to the taxation or assessment of costs NOTICES OF INTENTION TO APPEAL•This is a notice that the applicant intends to file a notice of appeal OR summons seeking leave to appeal (where leave is required) (r 51.6) •Must be filed and served on each prospective respondent within 28 days after the material date [date of judgment] (r 51.8) -BUT filing and serving notice of intention to appeal does not commence proceedings (r 51.9(3)) – must serve notice of appeal •AFTER serving notice of intention, the Applicant must file and serve the relevant originating process [NOTICE OF APPEAL OR SUMMONS SEEKING LEAVE] on each necessary party
63within 3 months of the material date (r 51.9(1)(a); r 51.10(1)(a)) or within such other period the Court orders (r 51.9(1)(b)) – also see r 51.16SUMMONS SEEKING LEAVE TO APPEAL •Summons must state whether the appellant has filed and served a notice of intention and date the notice was served (r 51.10(4)) •BUT if do not file a notice of intention, must file and serve the summons within 28 days of the material date (r 51.10(1)(b)) -Court may extend this time at any time (r 51.10(2)) •NOTE: if party opposes application for leave to appeal they must file a response (see r 51.13) NOTICES OF APPEAL•If notice of intention is filed and served, file notice of appeal within 3 months of the material date as per r 51.9 (r 51.16(1)(b)) •If leave is granted, must file a notice of appeal within 7 days or any other time the court fixes (r 51.16(1)(a)) •If no notice of intention and no leave, within 28 days after the material date or any other time the court fixes (r 51.16(1)(c)) •Notice of appeal must contain contents specified in r 51.18 (e.g. Statutory provision under which appeal brought, details of granting leave, grounds of appeal (see above e.g. error of fact or law)) CROSS-APPEALS•Not only applicants can seek to appeal the decision below •Respondents may seek to discharge or vary a decision or parts of a decision below by filing and serving a notice of cross-appeal (r 51.17(1)) •Must be filed 7 days after leave is granted to cross appeal (r 51.17(2)(a)) OR if no leave required, within 14 days of the notice of appeal being filed (r 51.17(2)(b)) -Court may extend this time at any time (r 51.17(3)) •BUT where leave is needed, must file a cross summons seeking leave to cross appeal and serve it within the earlier of: -28 days after the filing of a summons seeking leave to appeal (r 51.11(1)(a)) -28 days after the filing of a notice of appeal (r 51.11(1)(b)) -Court may extend these times at any time (r 51.11(12)) •NOTE: if party opposes application for leave to cross appeal they must file a response (see r 51.13) NOTICE OF CONTENTION•Identical process to NSWSC process applies for a respondent who wishes to file and serve a notice of contention relating to an appeal in NSWCA (see r 51.40) -BUT has 28 days after being served to file/serve notice of cont. (r 51.40(1)(b))•May also object to competency of the appeal by NoM under r 51.41 PROCEDURE (Pt 51 UCPR; Supreme Court PN CA 1) •With the summons or cross summons seeking leave to appeal, party must also serve a white folder (r 51.12(1)) which includes (r 51.12(2)): -Notice of appeal -Summary of argument -Reasons for judgment •Appellant must also prepare an Appeal Book in accordance with the requirements in r 51.26 which is divided into the following four sections (50.26(1)) -Red book (r 51.27) →Index →Pleadings →Reasons for judgment or summing up below -Black book (r 51.28) →Index →Evidence of each witness →Transcript (very expensive, as it must be certified as accurate) -Blue book (r 51.29) →All docs before the trial court such as MFIs, exhibits and affidavits -Orange book (rr 51.25, 51.30, 51.32, 51.33) →Submissions
64èAppellant’s submissions (rr 51.34, 51.36, 51.37, 51.39) èRespondent’s submissions (rr 51.34, 51.36, 51.37, 51.39) èFinal referenced submissions (rr 51.30(1)(b), 51.32(3)) →Chronology èAppellant’s chronology (rr 51.34, 51.35) èRespondent’s chronology (rr 51.37) →NOTE: submissions and chronologies must be filed and served in accordance with rr 51.37, 51.38•NOTE: in practice, it is generally accepted that the four books are separate and are not simply sections in one book •NOTE: may also be a combined book (r 51.26) which is a combination of the Black and Blue books where they total less than 300 pages – has a black or grey cover STAYS AND APPEALS •Must apply for a stay under s 135 CPA – does not occur automatically (see above) •In NSWSC, the filing of originating process of appeal [summons commencing appeal or seeking leave] does not operate as a stay of proceedings under the decision below (r 50.7(a)) or invalidate any intermediate act or proceedings (r 50.7(b)) •In NSWCA, the filing of originating process of appeal [notice of appeal] does not operate as a stay of proceedings under the decision below (r 51.44(2)(a)) or invalidate any intermediate act or proceedings (r 51.44(2)(b)) •Once NSWCA appeal is instituted, only appeal judges can grant stay (r 51.44) OUTCOMES OF APPEALS •Dismiss the appeal •Vary the orders of the judgment being appealed •Set aside the judgment and/or remit to lower court or make new orders •Order a new trial – where some substantial wrong or miscarriage (see r 51.53) •NOTE: costs normally follow the event – but discretionary (r 42.1) – see above HYPOTHETICAL LIFE CYCLE OF A CASE •Relationship ends. Ted – Plaintiff. Janelle – Defendant •Ted goes to the solicitor and complains. •T’s solicitor writes a letter of demand, asking for the house to be transferred into his name, $200K returned, and wants to know intentions. If J doesn’t respond, they will file a statement of claim and they’ll be demanding orders that it be transferred and that J repays plus interests plus court costs. •J then receives this statement of claim. It would be served on her. •J lawyers up because she ignored the letter of demand. The statement of claim has been filed. •J, as defendant, has two options (defence must be served) •File and serve a defence within 28 days of receiving statement of claim •Turn up in court without filing anything. As soon as she files, she is taken to have appeared. •Both parties then appear before the registrar. Never before the court/judge until the matter is ready for hearing. 80% will settle before hearing. 92% will settle before final judgment. •Could be 8 months – 3 yrs until a matter goes to trial. Want it quicker? Expedition. •In that intervening period, the registrar will do the case management REGISTRAR MEETING 1•P gets up first. D then gets up. Parties are present. •P presents proposed timetable, ‘short minutes’, which provides when evidence will be put on, D’s evidence, reply on evidence. •Then there’s a fight over relevant material which may not appear in the affidavits. Does there need to be a third party subpoenaed to produce other material/documents? •Documents and Disclosure are then done. REGISTRAR MEETING II•Subpoenas have a return date. They come back, are presented. REGISTRAR MEETING III •Ready for trial? •How many witnesses? To formulate number of days for trial. 1 witness = 1 day of trial. Can be tweaked. However, underestimation is a huge no no.
65•Then, parties go before the judge. •Judge will often demand a case management conference 10 weeks prior to trial. •Court books, tender bundles, list of authorities, written submissions. TRIAL TIME •P wants to open? They get 10 minutes. •Once the case starts running, the court will entertain any applications as it goes along, and these are interlocutory applications. A bit like mini hearings in relation to fights that the parties are having as things move along. E.g. they try to file a Mareva Order, because they think that the defendant might abscond with the money or try and move funds off shore to avoid judgment debt, and they have to fight that out in a hearing. •Trial starts •Parties stand up. •P’s barrister makes an opening for 10 minutes – tell the judge what it’s about. •D opens •Call first witness, usually P. •D’s barrister then gets up – usually the Defendant as first witness. •Any other witnesses must leave whilst this is going on. Evidence can be infected this way. •Referring to the affidavit. Try not to bring fresh documents – court hates this. •Barristers can ask questions which may need clarification. •Then, the judge will ask, ‘is that everything?’, and be absolutely certain here because after closing, nothing new can brought in, no more questions can be asked, or the other side can reopen. •Documents not filed – say, ‘that’s the plaintiff’s case...except for the one document, which I’m putting my learned friend on notice of now, and I plan to use it in cross examination’ •Always turn around to ask the solicitor if there’s anything that has been missed. •After all this, the judge will then decide – delivering ex tempore, or holding over. They may also seek more clarification on submissions. •A few weeks later... •Phone call from the Associate: ready to hand down •28 days to decide on appeal. •Costs fight? Costs follow the event, but if there was an offer during the proceedings, and it was better, then there may be some issues
66ETHICAL ISSUES FOR LAWYERS REGULATION CPA•Duty to assist parties to assist the court to further the overriding purpose, participate in court processes and comply with directions/orders (s 56(4)(a)) -I.E. duty to assist parties and thus indirectly assist the court LP Uniform Law 2015 (NSW)•Governs matters such as practising certificates, cost disclosure/billing arrangements, complaint handling processes, professional discipline issues and continuing professional development requirements •Reasonable prospects of success (Sch 2) Barristers and Solicitors Conduct Rules 2015 (NSW) •Regulate conflicts of interest (clients, former clients, their interest/others), rules regarding confidentiality, handling and storing legal documents, conduct before courts, advertising and communication with courts, colleagues and public •Given legal force by s 427 LP Uniform LawTort •Duty of care to clients (Hill v Van Erp; Badenach v Calvert) Equity •Fiduciary obligations (Maguire v Makaronis) •Duties of confidentiality Contractual •Arising from retainer/fee agreement/other contract NOTE: heightened duties for Crown, the Cth and the State as model litigants and also for lawyers appearing ex-parte ETHICAL ISSUES ARISING FROM THE RULES •Conflicts between duty to court and duty to clients -Paramount obligation to court and admin of justice (SR 3.1; BR rr 4, 23 4&8?) →Always prevails over duty to client contained in SR 4.1.1; BR 35èExplicit in Barrister’s Rules – act in furtherance of admin of justice “notwithstanding any contrary desires of their clients” (BR 4(e)) èException = obligations of confidentiality (SR Pt 9; BR 114) or privilege (Part 3.10 Evidence Act) →Regardless of legally prevailing, in practice, clients may often have wishes/interests which urge lawyers to contravene their legal duties èE.G.: where clients act delinquently or untruthfully, must inform the court of it or refuse to act for them (SR 20.1; BR 79) èE.G.: White Industries v Flower & Hart – where client instructs lawyers to adopt an improper strategy they should direct them not to or withdraw from acting (per Goldberg J) →Obligation to urge clients to comply with court’s orders even if doing so is contrary to what the client wants to do (SR 20.3; BR 81) •Conflict between duty of confidentiality and duty of candour/frankness -Client may seek to withhold information but lawyers’ duty to not knowingly deceive or mislead the court (SR Pt 19; BR rr 24, 25, 26) →See Legal Services Comm v Mullins-E.G.: duty of barristers to disclose relevant authority which may in fact be contrary to their client’s case (BR 29) -E.G.: McCabe v British American Tobacco – even though in client’s interest to destroy or withhold docs, gross violation of professional responsibility and will not be allowed – now prohibited by legislation – s 254 VIC Crimes Act•Conflicts in discovery -Client may want to use discovery as a tactical tool to exhaust opposing side’s resources (e.g. Broad requests, flooding with voluminous production, withholding relevant docs) -BUT this conflicts with their obligations to court under the Rules and overriding purpose binding them under s 56
67•Conflicts between duties to former, current clients and own interests are regulated by SR Parts 10-12•Failure to comply can be professional misconduct or unsatisfactory professional conduct (ss 296-298 LPUL; McCabe; Myers v Elman; Mullins)
68IMPACT OF TECHNOLOGY IN CIVIL PRACTICE CHANGING LITIGATION •IT has revolutionised CP – affects every part of it •Primary method of storing information now is electronically or on clouds -So, facts of each case are now contained electronically and must be collected, reviewed and ordered for disputes to be justly resolved -Has a massive impact on discovery due to volume of Electronically Stored Information (ESI) = mega-litigation •Word processing and online research has also impacted the way in which litigation is conducted and prepared DISCOVERY •ESI has drastically changed discovery because of volume and its nature -Most big firms now have minimum of a million documents in each case •Analytics technology often now used in discovery -E.G.: predictive coding – can ascertain relevant documents if you put a search in – for large volumes of docs – allowed once so far in AUS, see McConnell Dowell Constructors v Santam Ltd (No 1) [2016] VSC 734→Can also be used to prioritise documents – so that most relevant can be looked at first and produced first -E.G.: concept clustering – where technology clusters similar types of documents together and disregards irrelevant clusters of docs •NSWSC Practice Note 11 – Equity – Discovery-Court will not order for the disclosure of documents until the parties to the proceedings have served their evidence unless there are exceptional circumstances necessitating disclosure (Part 4) →Changed rule because of massive discovery – adaptation of rules to IT -NOTE: get around this by issuing notice to produce – common now in NSW – especially where there is consent between parties •Federal Court Practice Note 5 – Discovery-Discovery not as a matter of course, unless necessary for the determination in the proceedings and necessary in seeking a resolution in a just, cheap and quick fashion (Part 2 (c)(i)) -Must obtain a court order to get discovery PRACTICE NOTES AND IT Supreme Court of New South Wales, Practice Note SC Gen 7 – Use of technology •First ever PN re: technology – 1 August 2008-Demonstrates that IT is being used to achieve the overriding purpose-In brief:→[9], [10]-[15]encourages parties to exchange/serve docs electronically→[9] and [32]promotes use of technology in hearings •Part 9- all parties required to consider the prospect of using technology for the purposes of information exchange and at trial itself – encouraged to: -Exchange electronic versions of docs such as pleadings and statements -Consider using electronic data at trial in accordance with Court’s rules -Serve documents electronically •Pt 11- where there are more than 500 docs and they are not in ESI form, the Court will ‘expect’ the parties to consider using technology •Pt 16- when discovery is to be done and there are discoverable ESIs, parties are expected to reach a protocol early in proceedings Federal Court of Australia, Practice Note GPN-TECH – Technology and the Court•More recent but similar to NSWSC – 25 October 2016 -In brief: →[1.2], [3.1]-[3.13], [4.11]-[4.16]promotes exchange and filing of electronic documents →[1.1], [2.5]-[2.7], [4.1]-[4.10]promotes use of technology in litigation •Part 2– encourages appropriate use of IT to achieving OP •Part 3– encourages electronic discovery and provides protocols for this to occur
69•Part 4– facilitates videoconferencing between Court, registries and parties -Also allows some types of matters to be resolved in e-courtroom -Also encourages e-lodgement and use of IT in hearings -Interestingly – open e-files for public interest cases (open justice) •NOTE: both PNs simply encourage and do not mandate use of IT LEGISLATION AND IT •Civil Procedure Act 2005 (NSW) -S 9(4) = allows rules to be made to facilitate electronic case management of proceedings under cl 2 of Sch 1in the Electronic Transactions Act 2000-S 17(1)(b) = allows rules to be made to approve electronic filing and issuance of documents by the courts •Uniform Civil Procedure Rules 2005 (NSW) -Part 3 = whole part of the Act devoted to “Electronic Case Management” ▪ Allows electronic filing, electronic issuing of documents, electronic service of documents and use of online registry -Rules 2.3(h), 2.3(l) = allows court (during case management) to make orders and directions to provide electronic copies of certain documents and to use certain forms of technology to present or display evidence •NOTE: rules and PNs only encourage and often do not force use of IT OTHER IMPACTS OF IT ON CIVIL PRACTICE •IT’s impact on CP mirrors a double-edged sword -Potential to make litigation simpler OR more complex – depends on how it is used – focus on ‘appropriateness’ •Increased quantum of material before the court (eg. Evidence, authorities etc.) -Not all necessarily relevant – reliance on parties/court to discern info -E.G.: Ingot litigation; C7; Bell Group litigation •Changing role of the Judge – oversee and manage the litigation process -Must ensure that IT is used appropriately and in furtherance of the overriding purpose – through directions/orders -Must understand how IT can be used and how it affects CP •Use of electronic courtroom is now commonplace -Beneficial – Einstein J in Idoport Pty Ltd v National Australia Bank and Bleby J in Harris Scarfe-Popular for Royal Commissions – e.g. Trade unions and Child Abuse →Streamed online – improves access to justice and open justice -Exchange/production of docs between parties electronically (UCPR) -Encouragement of using technology in court where it reduces costs and increases efficiency (Practice Notes) →E.G.: video conferencing with witnesses – absolve need for attendance also useful for criminal proceedings as accused can appear via video link →E.G.: e-courtbooks – easier to access, travel with and edit documents →E.G.: e-transcript – remotely access, edit and markup transcript •Tool for document management -IT used to sort, index and classify information – save time/costs/space →E.G.: see analytic software above -Templates of documents can be saved and easily edited for different cases or clients – saves time – especially for large M&A transactions -Unique numbered identification of docs, time stamping, filing of previous versions, compare/combine technologies and identity info (e.g. author) →Dropbox/Adobe/Word •IT provides a means to combat mega-litigation – e.g. C7; Bell Group-Caused the rise of mega-litigation but also means to resolve it efficiently -Tool to increase efficiency if used appropriately (see argument in Idoport v NAB – one side argued e-court would be positive, other said it would not) →Most significant issue is the expense occasioned by using IT – e.g. Estimated that during Bell litigation, WASC expended nearly $900k in wiring the court for teleconferencing -Acknowledged in Part 2 of FCA PN GPN TECH – “appropriate” use of IT
70→Also NSWSC PN 7 – improve “efficiency” →Practice Notes acknowledge that IT is able to increase efficiency NEW ISSUES CREATED BY IT •Need new rules to regulate IT – are they sufficient? •Cost effectiveness of IT use in litigation – is it really cheaper? •When and how electronic courtrooms are used? Who bears their cost? Should costs of IT follow the event too? Discovery costs? What if one side chooses to use IT and has higher costs than if they did not? •Compliance – who is the correct party for ESI in clouds – must the cloud or the owner comply? •Hacking of e-courts and document databases/clouds? •Balancing privacy and compliance in social media •Discovery now extends to production of electronic devices and hard drives •Authenticity and reliability of ESI – especially social media – unknown authors and hacking
71EXAM PREPARATION PART A MULTIPLE CHOICE PREPARATION 1. A basis for striking out a statement of claim might be that there are reasonable prospects of success, but the plaintiff has traversed the pleading. •False •See notes for strike out grounds •Simply that factual allegations not traversed or denied by a defendant in pleadings are taken to be admitted (14.26(1)(a)) or, a joinder of issues can operate as a denial (14.26(1)(b)) 2. A defendant may plead an offsetting claim •True – only for D •D may plead some kind of set-off or offsetting claim (s 21 CPA) -Partial defence where mutual debts exist and a D can ‘set off’ part of the debt owed to the P -Must be a debt (IE. a liquidated claim) -Unliquidated amounts or amounts that are not due cannot be claimed by set off 3. A defendant may plead fraud without having to provide particulars •False •Must give particulars as to any allegations of fraud, misrepresentation, breach of trust, wilful default or undue influence: 15.34. A defendant may properly admit the plaintiff’s allegation •True •In Defence, D may: -Admit the allegations – no evidence required -Admit the allegations but explain further - ‘confess and avoid’ •Cost consequences if party fails to admit a fact or document in D that should have been admitted (rr 42.8, 42.9; Gordon v Gordon) 5. A Mareva Order provides for preliminary discovery. •False – see notes for mareva – see notes for preliminary discovery 6. A party who loses a civil trial always pay all of the legal costs of the winning party. •False – see costs rules •Loser generally pays because costs follow the event but not always 7. A summons is a type of pleading •False •DEFINITION (UCPR Dictionary): includes a statement of claim, defence, reply and any subsequent pleading for which leave is given under Part 14-DOES NOT include a summons or notice of motion 8. Affidavits may include headings, but they do not form part of the evidence in the proceedings. •True – check affidavit rules 9. All judges of the District and Supreme Courts have the title “The Honourable Justice” •False •District judges are the Honourable JudgeJohn Bloggs •Supreme judges are the Honourable Justice Peter Smith 10. An Anton Piller order requires parties in building and construction cases to list the cost of repairing all defects. •False •This is a Scott Schedule – anton piller is a search order
72•UCPR Rule 15.2Use of “Scott Schedule” in building, technical and other cases -(1) In proceedings involving a building, technical or other matter in which several items of a claim are in dispute as to liability or amount, or both, the party making the claim may, and if the court so orders must, prepare and file a “Scott Schedule” in the approved form. -(2) A party on whom a SS is served must complete and file the Schedule 11. Anshun Estoppel precludes a party from tendering affidavits from unrelated proceedings. •False •Anshun estoppel (PMA v Anshun) = estops party from raising an issue on appeal that it failed to raise at first instance •If an affidavit has been filed in other proceedings, it can’t be used in another (House v The King) 12. Arbitration is criticised because it drains public resources. •False •Form of ADR that occurs outside the courts and therefore is not funded by public resources – often relieves public resources because it diverts litigation from courts 13. Arbitrators must be legal practitioners. •True – see section 36 CPA in TB14. As of right, any party can appeal any decision of the Court without the need to apply for leave to appeal. •False •For NSWSC – see notes – determined by other Acts•For NSWCA – see notes – determined by s 10116. Costs encourage settlement by penalising parties who do not accept offers of compromise when they should. •True – see purposes of costs 20. It is an abuse of process to pursue proceedings for collateral purposes. •True – see notes 21. Letters of demand are not appropriate where the plaintiff if self-represented. •False •Letters are always appropriate to attempt to settle 22. Letters of demand are not appropriate where there is a risk of destruction of evidence. •True •Puts the other party on notice •Should attempt to receive Anton Piller order – see notes 23. Magistrates are addressed in court as “Your honour” •True •But pre-2005 were called Your Worship 24. Mediators must be legal practitioners. •False •As per ss 25-26 of CPA– need not be •Also SC PN 6only need to: -Consent to appointment -Agree to comply with rules in Part 4 CPA25. Only the Attorney General can bring proceedings to have a litigant declared vexatious. •False – see notes 26. Part 35 of the Uniform Civil Procedure Rules 2005 (NSW) regulates the use of subpoenas.
73•False – see notes •Part 35regulates affidavits 27. Parties can amend pleadings without leave at anytime. •False – see notes •At any stage P may, without leave, amend a SoC within 28 days of filing (19.1(1)) -D may amend defence within 14 days of date of amendment to SoC (19.1(2)) •Court may disallow amendments to pleadings (r 19.4) •After 28 days, two types of amendments to docs/pleadings may be made: discretionary and necessary (see CPA s 64) 28. Predictive coding is a tool used to assist in the review of electronic documents to be discovered in proceedings. •True – see notes 29. Section 27 of the Civil Procedure Act 2005 (NSW) requires that parties and their representatives act in good faith during a mediation. •True •While s 27only refers to “parties”, their representatives are acting on their behalf and are therefore required to comply as well 30. Section 56 of the Civil Procedure Act 2005 (NSW) requires that all parties attend a mediation before resorting to fully-contested litigation. •False •Does not requirealthough it encourages 31. Substituted service requires an order of the Court. •True – see notes 32. The expression “Without prejudice save as to costs” would appear on a letter from a solicitor to his or her client giving legal advice. •False •It would only appear on communications between a party and their opposing side •No costs can be awarded between a practitioner and client because this is governed by the retainer – only between parties 33. The Federal Court of Australia has a separate Court of Appeal. •False •Appeal Bench constitutes all Judges of the Federal Court 34. The NSW Court of Appeal is reluctant to allow applications for leave to appeal from costs orders. •True •Highly discretionary decisions of trial judges and therefore try not to interfere 35. The paragraphs in a summons do not need to be numbered. •False •UCPR Form 4Ahas numbered paragraphs in “Relief Claimed” section •NOTE: no UCPR rule on this - only pleadings must be numbered and summonses are not defined as pleadings 36. The term “reasonable prospects of success” means that a practitioner has all evidence needed to prove all allegations. •False •Do not need all evidence – do not know what evidence will be needed or if it at all •See Sch 2= RPOS is defined as: -(1) A law practice must not provide legal services on a claim or defence of a claim for damages unless a legal practitioner associate responsible for the provision of the services concerned reasonably believes on the basis of provable facts and a
74reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success 37. Underlining is a convention used by lawyers to indicate the insertion of new text when amending a document. •True •When you prepare the fresh document, you may show the amendments by: -Striking through the information which is being omitted -Underlining, bolding or using italics for the new information 38. Unless otherwise ordered, usual period of notice for a notice of motion is 21 days. •False •Service is the method of notice and it is at least 3 days before motion is heard (r 18.4) 39. When drafting a notice of motion, orders sought must be noted on front page and jurat must be signed •False – as per Form 20– orders sought must be noted on second page not on the front page and there is no jurat (this is only for swearing/affirming affidavits) 40. Whether proceedings will be filed in the Local, District, or Supreme Court is usually determined by the amount of the claim. •True •See notes PART B CASE NOTE PREPARATION See case note document PART C SHORT ANSWER PREPARATION 1) Costs orders and your views about the court’s exercise of discretion when making costs orders•The court has a discretionary power to make costs orders (s 98 CPA) after considering all circumstances relevant to the exercise of its power (Messiter v Hutchison), although the primary rule is that costs follow the event (r 42.1; Baulderstone Hornibrook) •Nature of the offer made and the parties’ conduct affect the court’s discretion because they determine: -First, the extent of court’s discretion to award costs -Secondly, in favour of whom it should exercise its discretion •OFFERS – different principles and rules apply where Calderbanks (see 75) and OoC (see 77) have been made and rejected -For Calderbanks, the court has a wide discretion to determine costs according to two questions (Miwa v Siantan) 1) Was the offer was a genuine offer, in that it involved a “real and genuine element of compromise”? 2) Was it unreasonable for offeree not to accept it? -For OoC, the court has a much narrower discretion, being constrained by rules in 42.13A to 42.15A of UCPR, although it may depart from these rules in exceptional circumstances (see Morgan v Johnson; Amaca v Mathwin) →However, an offer will not engage these rules unless it complies with Pt 20, Div 4 UCPRand is a genuine offer of compromise (Kain v Mobbs; The Anderson Group v Tynan) →Must be noted that where a OoC seeks to settle on a non-monetary basis it is more difficult to determine who wins and thus for the court to determine how to exercise its discretion acc. to the rules •CONDUCT – will influence how the discretion is exercised - see 80-Presumption that costs follow the event can be displaced (on an I/O basis) where there is evidence of disentitling conduct by the successful party (Oshlack v Richmond River Council) →EG: Where successful party effectively invited litigation or unnecessarily protracted proceedings (Tomanovic v Global Mortgage Equity Corporation)
75-IC awarded where a party engaged in procedural delinquency OR unreasonably conducted litigation (Baulderstone per Einstein J) 2) Service of originating processes in a world of technology•IT provides the capability to serve an originating process on a party through various platforms, almost instantaneously and regardless of their physical location -Furthers all three objectives in the OP in s 56→Just = greater access to justice for those in remote areas or who seek to bring proceedings against persons they cannot serve personally; →Quick = Reduces time taken to serve originating processes; →Cheap = Reduces costs/resources incurred in completing service; •UCPR have allowed technology to be harnessed to serve originating processes in furtherance of the OP in s 56 CPA (see below) -Part 3 UCPR devoted to electronic case management, with r 3.7 specifically allowing a party to use email to serve an originating process “with the consent of the other party” (Austar Finance v Campbell; also see r 10.6) →However, it must be noted that the requirement for consent in r 3.7 invariably means personal service is needed -Complemented by NSW Practice Note SC Gen 7 which encourages parties to electronically serve all documents in clause 9-Further, substituted service rules in r 10.14 are broad enough to allow for the use of technology to serve originating processes which cannot be “practically served” on a person →Exemplified in Flo Rida v Mothership Music where it was held that Facebook could be used to validly serve an originating process – provided that it could be proven that the Facebook account belonged to the person, they used the account and it was likely to bring the document to his or her attention →Bulldogs v Williams – also shows how technology is changing service and the rules are allowing for this – as Court allowed emailing of originating process to D in France – also shows how technology is helping achieve OP •DISADVANTAGES -Reduces access to justice for those who do not have access to or do not understand technology; -Rules currently only encourage and do not mandate electronic service 3) Where in the rules and legislation has Parliament articulated the primary obligation of lawyers to the court?•Primary obligation to the court is contained in s 56(4)(a) CPA which obliges lawyers not to conduct themselves in a way that causes a party to be in breach of their duty to assist the court to further the overriding purpose in s 56(1)(McGuirk v UNSW; Expense Reduction v Armstrong) -When read with s 56(3), s 56(4)also urges lawyers to assist parties to participate in court processes and comply with court directions and orders (Lemery Holdings v Reliance Financial Services) •HOWEVER other rules and legislative provisions must be considered as affecting and informing the nature of lawyers’ primary obligation under s 56(4)(a)-Most notably Schedule 2 of LPUL App Act 2015 (NSW) which obliges lawyers to only act in claims with reasonable prospects of success →Liable for costs (cl 5) or unsatisfactory professional conduct/professional misconduct (cl 4) if they breach -Lawyers must also consider acting in accordance with ss 57-58which inform their obligations under s 56(Halpin v Lumley General Insurance per Basten JA) -Barristers and Solicitors Conduct Rules 2015 (NSW), given force by s 427 LP Uniform Law, also affect this primary obligation, particularly by stipulating that lawyers’ duty to court always prevails where there is a conflict of duties (SR 4.1.1; BR 35) •As Pembroke J explained in Thomas v SMP, compliance with this primary obligation provides essential assistance to the court, enabling it to achieve OP in s 56 and efficiently administer justice
76•NOTE: AON v ANU – lawyer’s duty to the court is not a static obligation – must act appropriately according to circumstances of each case to further OP and assist the court to manage litigation 4) Why and when are costs orders made against parties?WHY•To manage litigation and encourage settlement -First, by pushing parties to adhere to their obligations to the court (s 56(3)) -Secondly, by compelling litigants to make generous offers and to accept reasonable offers or face adverse costs orders -Thirdly, by discouraging vexatious or inefficient litigation →Make litigants place realistic values on their cases rather than pretending they are worth more than they are -Fourthly, to deter litigation altogether →Particularly through the costs gap, as parties will never recover their full expenditure even when they attain favourable costs orders WHEN•Primary rule is that costs follow the event (r 42.1; Baulderstone Hornibrook) -However, this may be varied by the court, which has discretionary power to make orders as to costs (s 98 CPA) after considering all relevant circumstances of the case (Messiter v Hutchison) -Particularly any calderbank offers or offers of compromise made AND conduct of parties (see above) 4) Why and when are costs orders made against self-reps? •Same costs rules apply as those for represented parties •However, courts are more reluctant to award indemnity costs against self-represented litigants (Macedon Ranges Shire Council v Thompson) -Mainly because of their lack of knowledge of the law, unfamiliarity with court practice and lack of objectivity (Bhagat v Royal & Sun Alliance Life Assurance) -BUT where circumstances warrant an order of indemnity costs, after allowance is given for the difficulties facing self-represented litigants, they will still be awarded (Bhagat per Hodgson JA) •BUT costs rules remain unaffected for self-represented solicitors -Can both recover and be liable for costs identically to any represented party because they do not suffer from the same difficulties as self-represented lay persons (Cachia v Hanes; Wang v Farkas) 4) Why and when are costs orders made against practitioners? WHY•First, ensure practitioners abide by their obligations to the court and their clients, particularly their duty under s 56(4)(a) to assist parties further the OP and under Schedule 2 of LPUL App Act to only act in cases which have reasonable prospects of success -Incidentally, seeks to improve litigants’ access to justice by encouraging high standards of legal representation •Secondly, they urge practitioners to have regard to “the speedy and efficient administration of justice” when litigating (Giannarelli v Wraith) to avoid adverse costs orders – again serves OP •Thirdly, as per cl 5 of Practice Note SC Gen 5, they ensure practitioners comply with orders and directions of the court as well as the rules WHEN •Courts have inherent power to make costs orders against practitioners arising from their supervisory jurisdiction (Lemoto v Able Technical) -Power must be exercised with care and discretion and only in clear cases (Ridehalgh v Horsefield) •Section 99 CPAgives all NSW courts wide power to make costs orders against legal practitioners (Lemoto; Ideal Waterproofing v Buildcorp Australia) -Where there is serious neglect, incompetence or misconduct of a legal practitioner (s 99(1)(a)) or where they incur costs improperly or without reasonable cause (s 99(1)(b)) •Examples of conduct giving rise to costs orders against practitioners include:
77-Proceedings commenced without reasonable prospects of success as per Cl 5 in Sch 2 LPUL App Act (Firth v Latham) -Where practitioners fail to comply with the requirements of s 56(Kendirjian v Ayoub; Baulderstone Hornibrook v Gordian Runoff) •Practice Note SC PN Gen 5 also provides guidance as to when costs orders are made, for example, where there is a late amendment of pleadings •NOTE: -Liability for costs extend to the firm as well as to the solicitor on the record (Kelly v Jowett) -Practitioners must be given full and sufficient notice and full and sufficient opportunity to respond to personal cost order applications (Myers v Elman; Practice Note SC PN Gen 5) 5) Distinguishing the requirement for leave to appeal applications from the right to appeal •Whether the appeal is as of right or only by leave depends on the legislation constituting the appeal (Builder Licensing Board v Sperway Construction) •Determined by: -s 101 Supreme Court Act for NSWCA appeals →Appeals can be brought without leave to the NSWCA from any judgment or order of the Supreme Court in a Division (s 101(1)(a)) →BUT leave is necessary for appeals re: subject matter in s 101(2)èIncludes interlocutory judgments ((2)(e)), judgment for winding up ((2)(n)) and taxation/assessment of costs ((2)(q)) -Other courts’ statutes for appeals to NSWSC →Local Courts Act 2007 (NSW)èAppeals as of right on questions of law per s 39èBUT leave required for questions of mixed law and fact and for interlocutory and costs orders per s 40→District Court Act 1973 (NSW)èAs of right per s 127(3)èBUT leave required for appeals of interlocutory judgments (s 127(2)(a)), costs judgments (s 127(2)(b)), matters less than $100k (s 127(2)(c)) and consent judgments (s 127(2)(e)) •Where leave is needed the procedure is different, as appellant needs to file a summons seeking leave to appeal under rr 50.12 or 51.10 before a notice of appeal in NSWCA or summons commencing an appeal in NSWSC -Also need to file White Folder when seeking leave in NSWCA (51.12) •Leave operates as a filter for appeal courts (Coulter v The Queen) -Saves appeal courts’ time and resources in hearing certain appeals (M & L Watson v Rilsung) and therefore assists these courts achieve the just, quick and cheap OP in s 56-For example, for NSWCA, prevents wastage of resources hearing appeals of clerical mistakes as per s 101(2)(a) SC Act OR for a judgment or order involving claims less than $100,000 as per s 101(2)(r)•However, leave rules still allow for the hearing of appeals where the circumstances or subject matter of the case justify them -EG: leave was granted pursuant to s 101(2)(n) for the winding up of a multi-million-dollar company in DSG Holdings Australia v Helenic6) Why should lawyers care about their clients?•Client care is extremely important for lawyers for a multitude of reasons -First, caring about clients ensures that they have access to justice and that justice is properly administered to them by the courts in accordance with ss 56-60 CPA→For example, properly representing clients by prosecuting their claims with due despatch prevents dismissal of their proceedings under r 12.7(1) while ensuring a proper defence is pleaded ensures that a defendant has the opportunity to defend the case against them (Spellson v George) -Secondly, caring for clients and representing them effectively may reduce the costs and time expended by clients in resolving proceedings, upholding the quick and cheap objectives in s 56
78→For example, ensuring all ADR options are explored before advising a client to litigate in court may avoid immense cost and delay that accompanies a court resolution -Thirdly, to avoid their client or themselves breaching their legal duties and the detrimental consequences of such breaches →For example, ensuring their clients assist the court to further the overriding purpose under s 56(3) prevents costs orders being made against lawyers (Kendirjian v Ayoub) and clients themselves (s 56(5)) while also helping proceedings to be justly, quickly and cheaply resolved →Similarly, only litigating claims which have reasonable prospects of success prevents adverse costs orders against lawyers under cl 5, sch 2 of LPUL App Act (Firth v Latham) -Fourthly, effective client care upholds and improves lawyers’ personal reputations, the success of their legal practice and their financial success →It ensures fewer complaints, more clients and referrals, better client and staff retention, improved firm morale and the ability to charge higher fees 7) Why do the courts make it so difficult to strike out proceedings? •See Notes •Striking out proceedings is a type of summary dismissal •Courts exceptionally cautious to exercise their powers to strike out proceedings (Spencer v Cth), for example, only doing so where they contravene r 13.4 UCPR, are clearly defective (General Steel; Dey) or an abuse of process (Bastitatos) •First, this is because it deprives litigants of the right to litigate and therefore of access to justice (General Steel; Phornpisutikul v Mileto) -It thus conflicts with the “just” objective in the overriding purpose (s 56), depriving litigants of the opportunity to attain “justice” •Secondly, modern courts make it difficult because it is perceived that case management techniques and pre-trial directions are sufficient to cure defects in the way proceedings are brought (Barclay Mowlem v Dampier Port Authority per Martin CJ) -Courts now act as managers of litigation rather than passive umpires (JL Holdings per Kirby J) -For example, amendment to pleadings under s 64 CPA and the provision of better particulars under r 15.10 UCPR will often cure problems with the pleading of certain proceedings, thus absolving the need to strike out -Emphasised by Logan J in ACCC v Craftmatic who stated that a pedantic approach to compliance with formal rules should not be pursued •Thirdly, striking out may not necessarily prevent a litigant from instituting further proceedings (s 91 CPA), subject to the rules of res judicata and estoppel (Chamberlain v Deputy Commissioner of Taxation) -May therefore unnecessarily protract a course of litigation and increase costs without necessarily improving “justice”, in conflict with s 568) What role do lawyers play in ADR? •Role of lawyers in ADR varies depending on the type of ADR that is conducted and their position as a representative or conductor of the ADR process •Also depends on the nature of ADR as facilitative, advisory or determinative -EG: lawyers will often have a more adversarial role in determinative Arbitration than in facilitative Mediation LAWYERS REPRESENTING PARTIES IN ADR MUST: 1) Help client choose the most appropriate ADR process for themselves and their case to ensure the most just/quick/cheap resolution of the dispute (s 56 CPA) -For example, where a client seeks confidentiality (s 31 CPA) or greater flexibility in procedure to reduce time and costs, may prefer mediation 2) Ensure client understands and complies with the relevant ADR process and its legal requirements to get the greatest benefit out of it -For example, complying with Pt 4 CPA and Pt 20 Div 1 UCPR for mediation effectively regulates parties’ negotiation -Compliance with NADRAC’s 7 National Principles for resolving disputes may also facilitate more effective negotiation
793) As Robert Angyal SC advocates, must engage in appropriate advocacy during ADR and actively participate in processes (good faith for mediation s 27 CPA) -For example, employing Adair and Brett’s 4 stage constructive negotiation method, focusing on parties’ interests rather than positions -Ensures most effective compromise, as Orange Quarrel situation shows and again helps achieve the just, quick and cheap resolution (s 56) 4) Must comply with their own professional obligations to properly represent client and ensure justice is administered during ADR process -For example, as shown in Legal Services Commissioner v Mullins, must adhere to the requirements of the relevant Barristers and Solicitors Rules during mediation to ensure most just outcome •Ensure ADR is a precondition to litigation – helps OP (s 56) to be achieved •Draft proper ADR clauses in agreements b/w parties OR interpret – again (56) •Assist client to best present their case and encourage collaborative problem solving rather than adversarial conflict -Must understand the dispute, client’s interests and their BATNA, WATNA and PATNA – separate parties from the problem (Ury) •Prepare client for ‘end game’ of ADR – ensure client weighs up potential outcome of litigation with whatever compromise is available after ADR (Angyal) LAWYERS CONDUCTING ADR MUST:1) Ensure the process adheres to the OP in s 56 to reduce costs and time while also achieving a just outcome for the parties (Aon Risk) 2) Achieve their fundamental purpose as a specific type of ADR conductor -EG: mediators must assist disputants to achieve their own resolution (s 25 CPA) while arbitrators must hear evidence and produce a binding Award (ss 39, 40 CPA) 3) Comply with the requirements imposed upon them as ADR practitioners under the CPA and UCPR-EG: arbitrators must determine appropriate process for the arbitration (s 49 CPA) while mediators should give directions as to conduct of mediation (s 32 CPA) in furtherance of OP in s 564) Adhere to professional responsibilities in Barristers/Solicitors Rules 2015-EG: obligation to achieve proper admin of justice (SR 3.1; BR rr 3, 23) •Mediators should give parties practical and legal advice and encourage collaborative problem solving rather than adversarial conflict -Understand the dispute, parties’ interests and their BATNA, WATNA and PATNA, often involving, as William Ury advocates, separating the parties from the problem being disputed -Attempt to achieve lateral or innovative non-legal solutions, e.g., by preserving commercial relations •Arbitrators should make sound Arbitral Awards which respond to the parties’ submissions and are appropriate according to the evidence and relevant legal authorities (s 39 CPA) 9) What are the rules for interlocutory applications? •See Notes •Applications made before or during proceedings which do not finally determine right/duties/obligations of the parties (Brown v Phillip Morris) •All interlocutory apps must be brought by notice of motion (18.1) •Motion must also be supported by an affidavit (Vaughan v Dawson) which outlines the matters which the Motion relies on and why the applicant seeks the orders in the Motion •Motion must be filed and served on each person to be affected by the proposed order (18.2) at least three days before it is set for hearing, unless court orders otherwise (18.4) -Personally served on persons who have not entered appearance (18.5) -Although these rules can be dispensed with in cases of urgency (s 14 CPA) •Contents of notice of motion must (18.3): -Specify the date, time and place where it will be heard -The orders sought -Identify person by whom the order is sought, their name and role in the proceedings AND each person affected by the order and state their address for service •Applicant must be prepared to give usual undertaking as to damages arising from any interlocutory order (r 25.8)
80•Motion may be dealt with in party's absence if it is properly served and they fail to appear (18.7) •Also must be noted that interlocutory applications may be made ex parte, although courts are reluctant to do so (NAB v Bond Brewing) •After this occurs, the hearing of the Motion will take place and the applicant must satisfy the court that the legal requirements for the specific type of interlocutory application are met -EG: for injunction must prove that there is a serious question to be tried and the balance of convenience favours granting the injunction (ABC v O’Neill; ABC v Lenah Game Meats) 10) What rules do we rely upon when preparing an affidavit? •An affidavit is the evidence of a witness in written form -May be procedural or substantive, with its form mainly governed by Pt 35 UCPR and content by the Evidence Act 1995 (NSW)•All affidavits must be sworn or affirmed (s 21 Evidence Act; Pt 5 Oaths Act 1900 (NSW)) in accordance with the wording prescribed by s 24 EA and s 13 OA•Only those persons listed in r 35.3 may make affidavits •Further, Part 35prescribes other formal rules, primarily that the: -Name of deponent and date on which it was sworn/affirmed must appear in the affidavit heading (35.3A) -If the affidavit deals with more than one matter, it must be divided into paragraphs (35.4(a)) and each matter must be in a separate para (35.4(b)) -All paragraphs must be numbered consecutively (35.4(c)) -May include annexures and exhibits (35.6(1)) →Annexures must be attached and clearly identified (35.6(2)) →Exhibits must not be filed (35.6(5))-All pages, incl. annexures, must be numbered consecutively (35.6(3)) -Each page must be signed by deponent and witness (35.7B)-Alterations to the jurat or body must be initialled by the witness (35.5) •Affidavits that are irregular as to form can only be admitted into evidence with leave of the court (35.1) -At very least, irregularities cause embarrassment to parties •NOTE: -Affidavits of service have unique requirements (35.8) -Primary rule is that evidence is to be given orally (31.1(2)) unless Court orders evidence to be given by affidavit (31.1(3)) or if it is an interlocutory hearing or trial commenced by summons (31.2) -Conventions also influence the form of affidavits, including that they: →Must be securely fastened →Must be of a manageable size (around 50 pages) →Should never comprise original documents as annexures